Criminalizing Homelessness: Circumstances Surrounding Criminal Trespassing and People Experiencing Homelessness

• Published date: 01 July 2022
• Date: 01 July 2022
• DOI: 10.1177/08874034211067130
• Subject Matter: Articles

https://doi.org/10.1177/08874034211067130

Criminal Justice Policy Review

2022, Vol. 33(6) 563 –583

© The Author(s) 2021

Article reuse guidelines:

sagepub.com/journals-permissions

DOI: 10.1177/08874034211067130

journals.sagepub.com/home/cjp

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