Criminalizing Homelessness: Circumstances Surrounding Criminal Trespassing and People Experiencing Homelessness

Published date01 July 2022
Date01 July 2022
AuthorBrie Diamond,Kendra Bowen,Ronald Burns
DOI10.1177/08874034211067130
Subject MatterArticles
https://doi.org/10.1177/08874034211067130
Criminal Justice Policy Review
2022, Vol. 33(6) 563 –583
© The Author(s) 2021
Article reuse guidelines:
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DOI: 10.1177/08874034211067130
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Article
Criminalizing Homelessness:
Circumstances Surrounding
Criminal Trespassing
and People Experiencing
Homelessness
Brie Diamond1, Ronald Burns1,
and Kendra Bowen1
Abstract
Criminal trespassing (CT) is an understudied misdemeanor offense often enforced
to maintain control over contested spaces and, in practice, often disproportionately
used against disenfranchised populations such as the homeless and mentally ill. This
study uses the CT case files of a county criminal district attorney’s office to investigate
how cases involving defendants experiencing homelessness are handled compared
with other defendants. Results show that homeless defendants make up a substantial
portion of all CT cases, are more likely to be repeat CT defendants, and account
for most jail sentences. Whereas defendants with mental health issues were often
deferred for services, this avenue was not similarly extended to homeless defendants.
Qualitative analyses show varied circumstances related to CT arrest for homeless and
non-homeless defendants. The findings suggest various policy implications to refocus
police resources and promote interagency cooperation to address the underlying
causes of CT involvement by people experiencing homelessness.
Keywords
criminal trespassing, criminal court, homelessness, policy implications
Criminal trespassing (CT) laws provide a means by which government officials,
primarily the police and prosecutors, can apply legal sanctions to often less serious
offenses. These enforcement actions typically involve the use of much discretion;
1Texas Christian University, Fort Worth, USA
Corresponding Author:
Brie Diamond, Texas Christian University, Fort Worth, TX 76129, USA.
Email: b.diamond@tcu.edu
1067130CJPXXX10.1177/08874034211067130Criminal Justice Policy ReviewDiamond et al.
research-article2021
564 Criminal Justice Policy Review 33(6)
however, relatively little scholarly attention has addressed the topic. The amount of
discretion inherent in trespassing cases varies by each incident, for instance, as a police
officer who is called to remove an individual from another person’s home has less
discretion than the officer who confronts an individual in a public park after it has
closed for the evening. Discretion in CT cases also extends to prosecutors, who decide
which cases will move forward in criminal case processing, and which will not be
pursued.
Municipal governments have increasingly introduced legislation and techniques to
more closely control socially marginalized groups. Quality of life ordinances, such as
panhandling and sit-lie laws, are receiving more attention due to their anti-homeless
focus. The National Law Center on Homelessness and Poverty (NLCHP, 2019) found
that more than half of the 187 U.S. cities studied utilized quality of life ordinances,
such as camping, sitting, and lying in public as well as loitering. For example, the
Dallas Police Department (DPD) issued over 11,000 sleeping-in-public citations from
2012 to 2015 and 2,000 panhandling citations in 2015 (Kuo, 2017). However, DPD
scaled back panhandling enforcement efforts in 2018, citing free speech concerns
(Eiserer, 2018). In 2019, Los Angeles city and court officials voided over one million
citations and warrants to “unclog” their system, a move that was touted as helping the
homeless population. The move, however, did not pertain to citations and warrants
issued in the previous 5 years, and police said they would not stop issuing the citations
(Holland, 2019; Schneider, 2020).
CT is an understudied area in the field of criminal justice as it is considered a minor
violation with minimal consequences. However, as discussed in the following, these
infractions have very real consequences for the largely marginalized populations who
often receive them. Understanding the tangled relationship between homelessness and
involvement in our justice systems is a primary step in resolving the issues with the
best interests of all involved parties in mind.
This work adds to the scant research literature in this area by analyzing factors
related to the prosecution of CT laws, with consideration of the impact of homeless-
ness in relation to these actions. Particularly, prosecutorial records from a large, south-
ern county Criminal District Attorney’s (CDA) office were assessed to explain how
arguably the most marginalized group—people experiencing homelessness—interact
with the system relative to other defendants. Our primary concern in the study is the
differences between homeless and non-homeless individuals arrested for CT, with
consideration of offender characteristics, offender behavior and status at the time of
arrest, the adjudication of their cases, and the locations at which they trespassed.
Findings in relation to the identified differences between the two groups provide guid-
ance for a more directed response on behalf of law enforcement and prosecutors to
more effectively address CT offenses.
Literature Review
CT has been defined as occurring when

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