Jailing the homeless won’t solve the problem, it’ll just kick people who are already down

Campers and RVs lined up near Bozeman, demonstrating part of the growing homelessness challenges in Montana (Photo provided courtesy of Montana PBS).

As it closed out its court year, the United States Supreme Court issued several significant decisions, including one that approves criminalizing homelessness – or more precisely, sleeping in public.

The dissenting justices thought, quite understandably, that “sleep is a biological necessity, not a crime.” Therefore, they reasoned, if you do not have a home and no homeless shelter beds exist, you need to be able to legally sleep somewhere. As sensible as that may seem, they did not have the votes to make that position the supreme law of the land. Instead, the majority of the court voted to declare that sleeping in public with a blanket or a shirt wrapped up under your head as a pillow is sufficient justification for a local city to throw you in jail.

Keep in mind that before this ruling, any unhoused person who committed a crime could already be arrested. So, if someone was posing a genuine safety risk to the community, there were already laws on the books that allowed them to be jailed. Moreover, sleeping was already allowed to be outlawed under the previous legal standard. The one caveat was the city that wanted to jail a homeless person for sleeping in public had to show there was a shelter bed available and a person refused it. The Supreme Court said a city no longer needs to concern itself with whether there are other alternative places to sleep. Involuntarily sleeping in public can now be punished with jail time. They made this decision knowing full well that the U.S. has 188,000 fewer shelter beds than people who need them.

This lets politicians off the hook for coming up with real solutions. They can simply do what they do frequently with behavioral health, poverty and other social problems: Make it a crime and use our law enforcement professionals as garbage collectors for problems and people no one else in government is brave enough or talented enough to address.

The first Montanan politician to publicly weigh in on this issue was Attorney General Austin Knudsen who immediately issued a statement crowing support of what he called a “huge win.” He had the audacity to claim that because the previous legal standard didn’t allow for the arrest of people with no place else to sleep that “local governments have been unable to address the rampant homeless camps…” as if criminalizing poor people was the only way to address this issue. He then implied that Missoula and Bozeman were cowards in how they approached homelessness in the past and called on them to “enforce the laws that stop Montana streets from becoming camps for the homeless.”

Knudsen goes even further than the majority opinion of the Supreme Court went. The court at least gave lip service to jail not necessarily being the right solution for every community and likely should be the last option, but Knudsen wholeheartedly embraces the coldhearted practice.

Unlike Knudsen’s chiding of certain Montanan communities’ responses to homelessness, I believe that all communities genuinely want to end homelessness. I believe many try hard to come up with good solutions. I also believe that many communities fail and end up pursuing bad ideas. The approach of jailing unhoused people that was authorized by the U.S. Supreme Court and encouraged by our state’s top law enforcement official is a bad idea, perhaps the worst idea, both from a moral and logical perspective.

I think a you-vs.-me, left-vs.-right, my-way-or-the-highway approach makes no sense in most situations. As with most complicated issues, I think looking at specifics instead of generalized talking points is a better place to start identifying the contours of the problem and the essential elements of successful solutions. So, let’s examine the humanity and real-life situations we are discussing.

Growing up, my father had a mental illness. He never could hold down a job for very long. When I was in the second grade, he and my mom divorced. During this time, he was institutionalized in a psychiatric facility and was later chronically homeless. Sometimes he could afford a cheap apartment, other times he slept in a beat-up old car, and when he lost his car, he slept on the street, or at a shelter. He eventually got some additional training, a job, and housing, but he always had mental health needs and eventually died from suicide.

He was homeless because he had no money and in its place had plenty of grand ideas that didn’t match reality. At no point in his life would arresting him for sleeping in a park or his car have helped him get back on his feet. He wasn’t avoiding sleeping under a roof because he wanted to save some big fat bank roll for more fun things, he simply couldn’t afford housing because he had a mental illness and couldn’t hold down a job.

Arresting him for this would simply be kicking him while he was down. It would have made it harder for him to get back up. Do city leaders and state-level politicians like the state’s top lawyer who want to arrest people without jobs and homes honestly not understand that having a criminal record makes getting a job and home harder, not easier? Or do they just not care?

My dad wasn’t remarkable. In fact, his story is pretty typical. On any given day, there are 600,000 Americans who are unhoused. 78% of those people have a mental illness and 75% have substance use disorder. All of them lack a home.

Therefore, I think it makes sense to focus on providing people with the treatment they need, an opportunity to engage in meaningful activities during the day, and a home. That’s how we fix homelessness. It isn’t that complicated. Sure, the devil is in the details, like how do we design services and housing in ways that people want them and will access them, and how do we leverage federal, state, and local dollars to fund them. I think we get closer to answering those questions by engaging unhoused people in learning more about the specifics of what their housing and treatment needs are. I think we learn more about our funding opportunities by engaging taxpayers about the values they want their dollars to support – more jail beds or more real beds. And we learn how much they want their elected officials to use their time, connections, and political capital to make those values a reality across our state.

But we can’t even get to those conversations if we let policy makers and executive leadership side-step the issue. It is easy to grandstand about wanting to be tougher on the most vulnerable, or otherwise hope voters will buy that your threat of jail is sufficient to scare unhoused people into taking advantage of services and housing that don’t exist.  Remember, the only thing this new Supreme Court opinion did was allow the jailing of people who sleep in public when other options do not exist. Prior to this new decision, when shelter beds existed it was possible to arrest people who didn’t use those beds.

Local governments are reviewing the court’s order and making decisions now and in the coming months about whether they start arresting more people who have no place to sleep. Your advocacy will encourage your community to find supportive solutions to end homelessness and not let policy makers embrace a cruel and illogical policy that throws poor people in jail simply for sleeping.