Ensuring dignity as public safety

• Author: Ben A. McJunkin
• Position: Associate Professor of Law, Sandra Day O'Connor College of Law at Arizona State University; Associate Deputy Director, Academy for Justice
• Pages: 1643-1664

RESPONSES

ENSURING DIGNITY AS PUBLIC SAFETY

Ben A. McJunkin*

ABSTRACT

In his Distinguished Lecture for the Academy for Justice, Are Police the Key

to Public Safety?: The Case of the Unhoused, Barry Friedman contends that

America needs to rethink the meaning of “public safety.” Guaranteeing public

safety is arguably the most foundational responsibility of government. Yet a too

narrow understanding of what public safety requires may be at the root of our

country’s overreliance on police to handle tasks for which they are ill suited.

Through the lens of police interactions with the chronically homeless, Friedman

suggests that a broader conception of public safety would include affirmatively

providing for citizens and would better account for the safety trade-offs entailed

in police deployments.

In this response to Friedman’s lecture, I connect Friedman’s more expansive

definition of public safety to legal philosophies that elsewhere tend to speak in

the language of ensuring human dignity. By highlighting the dignitarian strands

in Friedman’s work on public safety, I hope to give Friedman’s account a richer

theoretical grounding and more purchase in American constitutionalism.

However, doing so also raises questions about whether Friedman’s legal pre-

scriptions are fully consonant with the extremes of his theoretical commitments.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1644

I. FRIEDMAN’S DIGNITARIAN COMMITMENTS. . . . . . . . . . . . . . . . . . . . . . . 1646

A. Dignity as Capabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1647

B. Dignity as Incommensurability . . . . . . . . . . . . . . . . . . . . . . . . 1649

C. Dignitarian Constitutionalism. . . . . . . . . . . . . . . . . . . . . . . . . 1652

II. THE DIVERGENCE OF COMMITMENTS & CONSEQUENCES . . . . . . . . . . . . . 1653

A. Criminalization for Thee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1654

B. Defunding, Not DeShaney . . . . . . . . . . . . . . . . . . . . . . . . . . . 1658

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1663

* Associate Professor of Law, Sandra Day O’Connor College of Law at Arizona State University; Associate

Deputy Director, Academy for Justice. I would like to thank Barry Friedman for this opportunity to respond to

his work; Kaiponanea Matsumura, Erin Scharff, Joshua Sellers, Michael Serota, and Justin Weinstein-Tull for

their thoughtful comments on this response; and Joanna Jandali and Krysta Polakowski for invaluable research

assistance. © 2022, Ben A. McJunkin.

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INTRODUCTION

At any given moment, nearly half a million Americans are homeless.

1

Make no

mistake, this is a societal failing. There are more than twenty empty homes in this

country for every homeless individual.

2

Yet America has largely decided to turn to

the power of criminalization to deal with these individuals, rather than to remedy

the failure by providing for them.

3

It is one of our deep pathologies that Americans

have abdicated our shared responsibility for homelessness, decreeing instead that

the condition is both a personal and a moral failing.

4

It is in response to this tragic state of affairs that Barry Friedman offers his lec-

ture, Are Police the Key to Public Safety?: The Case of the Unhoused.

5

By examin-

ing how we police individuals experiencing homelessness, Friedman demonstrates

how American understandings of the police and public safety are currently emaci-

ated.

6

Wishing only to remove unimaginable poverty from public view, we deploy

the tool of criminalization against homelessness to empower police as law

enforcers.

7

As Friedman says: [W]e do not want unhoused people around. On the

other hand, housing the homeless is expensive and people are generally unwilling

to pay for it. So we call the police and ask them simply to make the homeless go

away.

8

As a result, we never address the root causes of homelessness, and we rarely

stop to consider the costs entailed by our approach.

The real costs of policing homelessness comprise a significant component of

Professor Friedman’s lecture. He urges us to improve policing by embracing a

cost-benefit analysis with respect to criminalization.

9

Looking beyond the tradi-

tional measures of policing success—e.g., arrests made—Friedman highlights the

costs entailed by deeming certain behavior criminal, and hence “dumping them in

the hands of society’s clean up squad, the police.”

10

These costs include not only

1. U.S. DEP’T OF HOUS. & URB. DEV., CONTINUUM OF CARE HOMELESS ASSISTANCE PROGRAMS HOMELESS

POPULATIONS AND SUBPOPULATIONS, HUD (2019), https://files.hudexchange.info/reports/published/CoC_

PopSub_NatlTerrDC_2019.pdf (counting 567,715 homeless individuals during the annual point-in-time count in

2019).

2. See U.S. CENSUS BUREAU, QUARTERLY RESIDENTIAL VACANCIES AND HOMEOWNERSHIP, FOURTH

QUARTER 2020 (Feb. 2, 2021), https://www.census.gov/housing/hvs/files/qtr420/Q420press.pdf (estimating 11.8

million year-round vacant homes in the United States).

3. Maria Foscarinis, Downward Spiral: Homelessness and Its Criminalization, 14 YALE L. & POL’Y REV. 1,

2–3 (1996).

4. See Sara K. Rankin, The Influence of Exile, 76 MD. L. REV. 4, 21–22 (2016) (explaining how American

notions rooted in the “bootstrap” work ethic and labor-desert principles lead to blaming homeless individuals for

poverty that is viewed as self-inflicted).

5. Barry Friedman, Are Police the Key to Public Safety?: The Case of the Unhoused, 59 AM. CRIM. L. REV.

1597 (2022).

6. See Friedman, supra note 5, at 1601–06.

7. Id.

8. Id. at 1624.

9. Id. at 1624–30.

10. Id. at 1625–27, 1637.

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