A Cruel and Unusual Way to Regulate the Homeless: Extending the Status Crimes Doctrine to Anti-homeless Ordinances.

• Author: Kieschnick, Hannah

Abstract. In the face of affordable housing crises and increasingly visible homeless populations, many cities have enacted anti-homeless ordinances that regulate public behavior largely performed by homeless individuals. These ordinances prohibit necessary and life-sustaining behavior, such as sleeping and camping in public, for those without housing in cities that lack sufficient shelter space. Although the U.S. Supreme Court in the 1960s established the "status crimes" doctrine--which provides that the Eighth Amendment prohibits subjecting a person to criminal punishment based on her status--the Court has left unaddressed the full reach of that doctrine. Some advocates for homeless people have argued that the status crimes doctrine protects against the criminalization of conduct that homeless individuals have no choice but to perform in public. Lower courts and state courts considering constitutional challenges brought by these advocates have divided on the issue, left to conjure up limiting principles without guidance from the Court.

This Note argues that the status crimes doctrine and the substantive protections of the Eighth Amendment should extend to this kind of conduct. It proposes a test to aid advocates, courts, and local legislators. In addition, it addresses standing and other procedural concerns that have plagued homeless plaintiffs seeking to challenge sleeping and camping bans.

Introduction I. A Primer on Anti-homeless Ordinances II. Anti-homeless Ordinances and the Eighth Amendment's Substantive Limit A. The Eighth Amendment Status Crimes Doctrine B. Courts Disagree About Whether Robinson Applies to Anti-homeless Ordinances 1. Courts that extend Robinson to conduct 2. Courts that limit Robinson to pure status C. The Argument for Extending the Eighth Amendment's Substantive Limit to Anti-homeless Ordinances 1. Homelessness as a protected status under the Eighth Amendment 2. A three-part test for extending Robinson to conduct when criminalizing that conduct effectively criminalizes homelessness 3. Testing the distinction between sleeping bans and camping bans III. Procedural Obstacles to Advancing Eighth Amendment Challenges to Anti-homeless Ordinances A. When Do Homeless Plaintiffs Have Standing to Seek Retrospective Relief Under the Eighth Amendment? 1. When does the Eighth Amendment's substantive limit attach? 2. What must homeless plaintiffs show to have standing for retrospective relief? B. When Do Homeless Plaintiffs Have Standing to Seek Prospective Relief? Conclusion Introduction

Everyone has basic human needs, including a place to sleep and food to eat. For people who are homeless, satisfying these basic needs may require breaking the law. Nationwide, there has been a proliferation of local regulations--often called "quality of life" or "anti-homeless" ordinances--that prohibit public conduct associated with being homeless, including sleeping, sitting, and sharing food. (1) In California, approximately 500 anti-homeless ordinances have been passed in recent years. (2) And across the country, the number of citywide camping bans increased by 69% from 2006 to 2016. (3)

Cities are responding to a perceived homelessness crisis. The number of homeless individuals in the United States increased slightly between 2016 and 2017, for the first time in seven years. (4) Homelessness rates are directly correlated with rising housing costs and decreasing availability of affordable options in most metropolitan areas. (5) "[U]pend[ing] the stereotypical view of people out on the streets as unemployed," some homeless individuals are more accurately described as the working poor who have been displaced by rising costs of living. (6) In addition, homelessness is simply more visible than in years past because there are increasingly more unsheltered homeless individuals who must sleep in public. (7) This varies by state but is felt most acutely in California, where many of the regulations discussed in this Note have been passed: In 2017, the Golden State accounted for 49% of all unsheltered individuals in the United States. (8) Finally, construction, especially by the tech industry in California, has meant that office buildings now fill the empty lots where homeless people used to be able to sleep "in seclusion," away from the public's eye. (9)

Cities across the country are engaged in what the New York Times has called "civic soul-searching" regarding the efficacy of these regulations in response to the increasingly visible homeless population. (10) Some of this soul searching is forced into the public sphere through the judicial system. There are two main vehicles by which the constitutionality of an anti-homeless ordinance comes before a court. A homeless defendant may argue that an ordinance is unconstitutional as a defense in a criminal prosecution under the ordinance. A homeless plaintiff or a class of homeless individuals may also bring an affirmative civil challenge seeking retrospective and prospective relief, arguing that as applied to them, the ordinance is unconstitutional. (11)

The U.S. Supreme Court has not addressed the constitutionality of regulations that present homeless people with a Cornelian dilemma, forcing them to choose between survival and compliance. Without guidance, lower and state courts are divided over such ordinances' legality on both substantive and procedural grounds. Courts facing these challenges have struggled to answer two central questions: In civil cases, do these plaintiffs have standing? And in both civil and criminal cases, are these anti-homeless ordinances vulnerable to Eighth Amendment challenges? This Note wades into this morass to answer both questions.

This Note proceeds in three Parts. Part I provides a primer on the antihomeless ordinances that are the focus of this Note: ordinances that regulate sleeping in public either in the form of a general "sit-lie" law or a more specific ban on tents and other semipermanent structures. Using three cities as examples, Part I describes the cycle of criminalization that can result from enforcement of these kinds of ordinances.

Part II then presents the case for an Eighth Amendment challenge to such anti-homeless regulations. Advocates for homeless people have relied on the "status crimes" doctrine from the Supreme Court's decision in Robinson v. California (12) to argue that by criminalizing conduct homeless individuals must perform in public, localities effectively criminalize the status of being homeless in violation of the Eighth Amendment. In Robinson, the Court held that it was cruel and unusual punishment to criminalize the "status" of simply being a drug addict. (13) Advocates' reliance on Robinson and the status crimes doctrine has had mixed success; for more than five decades, courts have divided over whether Robinson ever extends to conduct. After providing some background on status crimes and updating the legal landscape to include recent cases not discussed in previous scholarship, this Note distills a new, three-part test to determine when Robinson's substantive limit extends to proscribed conduct.

Some courts considering Eighth Amendment challenges to anti-homeless ordinances identify procedural barriers and avoid reaching the merits altogether. Part III presents the first comprehensive analysis of these barriers. (14) Many cities enforce anti-homeless ordinances through warnings and citations but stop short of criminal prosecution. Part III.A examines the first procedural barrier: when the Eighth Amendment's substantive protection attaches. Because, as argued in Part II, that protection "governs the criminal law process as a whole," (15) this Note concludes that homeless plaintiffs should have standing to invoke the Eighth Amendment for retrospective damages as soon as any part of the criminal process has been instigated against them, not only after conviction. This Note then catalogs the injuries courts have required of plaintiffs who seek to show standing in an affirmative challenge. Part III.B turns to the second obstacle--standing to seek prospective relief--and explains why homeless plaintiffs should have standing to seek an injunction against an anti-homeless ordinance that has been applied against them.

While the Court's silence on the reach of Robinson persists, lower and state courts have struggled to define the substantive and procedural contours of the Eighth Amendment. The silence and confusion become only more salient as localities continue to pass new anti-homeless ordinances to address the perceived homelessness crisis and as legal organizations continue to bring constitutional challenges to these ordinances. Where, as here, ordinances target particularly vulnerable communities largely shut out of the political process, judicial oversight is imperative. In the face of this ambiguity, this Note aims to serve as a guide for three relevant groups: litigants challenging these regulations, courts considering these challenges, and legislators drafting anti-homeless regulations.

1. A Primer on Anti-homeless Ordinances

   This Part provides a brief introduction to one method by which cities have sought to address the perceived homelessness crisis: tent bans and "sit-lie" laws. A basic understanding of the way these laws are enforced and the impact they have on homeless people is crucial to understanding the viability of the Eighth Amendment challenge discussed in Part II and the procedural problems discussed in Part III.

   San Francisco's sit-lie law exemplifies the typical result of anti-homeless regulations: a "cycle of criminalizing homelessness." (16) Section 168 of San Francisco's Police Code makes it "unlawful to sit or lie down upon a public sidewalk" "during the hours between seven (7:00) a.m. and eleven (11:00) p.m." (17) Without anywhere to go during the day, many homeless individuals risk violating the law simply by appearing in public. After an initial warning, police may issue...