Why Criminalizing Homelessness is a Cruel and Unusual Policy

Weeks ago, Americans applauded the heartwarming story of Elijah Hogan , a Black New Orleans teenager who, despite experiencing homelessness for a year and a half, became valedictorian of Walter L. Cohen High School . Perhaps many wanted to focus on this positive, heartwarming story, someone with a happy ending. Hogan, who will attend Xavier University next fall semester, will no longer experience homelessness because of his academic scholarship and the charitable donations of concerned citizens who learned about his story of perseverance. Nevertheless, many homeless people do not have a happy ending to celebrate. Indeed, on any given night in America, over 600,000 people experience homelessness. This is a terrible crisis to have in the wealthiest nation in the world.

And yet, local governments often employ inhumane strategies to mitigate homelessness. They frequently talk about removing the homeless as if they are a scourge or a disease rather than human beings. When Mayor Rudy Giuliani, a Republican, became mayor of New York City during the 1990s, he boldly pledged to rid the city of its homeless population . Unfortunately, his plan did not involve ensuring the city had sufficient, affordable housing. Giuliani claimed, “‘Streets do not exist in civilized societies for the purpose of people sleeping there,’’ an opinion that did nothing to mitigate the primary cause of homelessness — poverty. In an editorial, he further stigmatized them, saying, “Get the violent crazies off our streets,” and promoted policies that marginalized those facing housing insecurity.

The current New York mayor, Eric Adams, a Democrat, is spearheading an equally troubling policy — ordering police to dismantle hundreds of homeless encampments. Diana Ayala, a City Council Member, commented that “people have a right to be concerned” about the rise of homelessness. Still, we have to address it in a way that “doesn’t take us back to the Giuliani era where we were solving every problem by locking up Black and brown folks and criminalizing poverty.” Despite civil rights and human rights activists warning Adams that his policies are exasperating a cycle of poverty in New York rather than alleviating the problem, the mayor seems more concerned with removing homeless encampments than mitigating the poverty that perpetuates homelessness. While the Supreme Court’s decision split along ideological lines, Eric Adams’ policies demonstrate prejudice against people experiencing homelessness remains a bipartisan issue.

The goal to remove homeless encampments often ignores the reality that many individuals have nowhere to go. Instead of a roof over their heads, some only have the stars or a bridge overpass. One report found that anti-homelessness ordinances and laws are growing in popularity throughout the country, and these codes are “typically enforced in a discriminatory fashion.” Criminalizing homelessness may not only violate the United States Constitution but also international human rights law, “specifically the Convention Against Torture and the International Covenant on Civil and Political Rights.”

Criminalizing homelessness is cruel and unusual punishment, but it’s also racist when we consider the disproportionate manner in which statutes are enforced in this country. Black Americans, more than any other group, are confronted by police officers, arrested, and convicted of crimes. As a result, any “war on homelessness,” just like the “war on drugs,” will disproportionately impact Black people and communities of color. In the City of Grants Pass, Oregon v. Gloria Johnson, the Ninth Circuit justices noted that finding a safe place to sleep is often challenging and that “incarceration, even for short periods, can disrupt employment and a ‘criminal record’ can make finding future employment more difficult, disqualifying individuals from housing opportunities and lead to debt from fines and other costs that the individual cannot pay, exacerbating cycles of poverty.” Here, we see the limits of a purely capitalistic system.

If America is determined to punish those without money who cannot participate in the system, then it’s undoubtedly inflaming the social problem of homelessness rather than alleviating it. Without a concern for the common welfare, many will continue to suffer in poverty. Leaders throughout much of the country are failing to invest in long-term, sustainable, affordable housing or mitigate the poverty that perpetuates homelessness. Cities with anti-homeless ordinances are willing to pay for a bed for a homeless person to sleep in, but only in jail. This is a missed opportunity to invest in long-term solutions.

The Ninth Circuit court suggested that the “Eighth Amendment prohibits the imposition of punishment based solely on a person’s status” and that any law that would “prevent a homeless individual from residing within a jurisdiction criminalizes the status of homelessness.” However, the Supreme Court’s 6–3 decision in the City of Grants Pass, Oregon v. Johnson overturned their decision, allowing the statute to stay in place. In a dissenting opinion, Justice Sotomayor said, “Sleep is a biological necessity, not a crime. For some people, sleeping outside is their only option. The city of Grants Pass jails and fines those people for sleeping anywhere in public at any time, including in their cars, if they use a little blanket to keep warm or a rolled-up shirt as a pillow. For people with no access to shelter, that punishes them for being homeless. That is unconscionable and unconstitutional. Punishing people for their status is ‘cruel and unusual’ under the Eighth Amendment.”

According to Kim et al. (2023), people experiencing homelessness are often stigmatized as unhygienic, socially deviant, sexually aggressive, threatening, and violent; many assume they deserve to be homeless or possess a flawed character, and “homeless” is often used as a synonym for terrible or inferior. In many ways, they echo the stereotypes endorsed about Black Americans, who frequently suffer from the presumptions white people make about them. Coupled with a government report indicating that 50% of homeless families are Black, we can see that the war on the homeless is not just cruel and unusual; it’s also fundamentally racist.

This post originally appeared on Medium and is edited and republished with author's permission. Read more of Allison's work on Medium .