A Grounded Approach to Our Homelessness Crisis

• Publication year: 2021
• Author: Gary Blasi

A Grounded Approach to Our Homelessness Crisis

Gary Blasi

Gary Blasi is Professor of Law, Emeritus, at the UCLA School of Law. Before joining UCLA in 1991, he practiced for 13 years at the Legal Aid Foundation of Los Angeles, where he began representing homeless individuals and families in 1983. His research at UCLA has focused, in part, on the causes of homelessness, the social psychology of responses to it, and the effectiveness of interventions.

I. INTRODUCTION

On February 8, 2021, the City of Boise, Idaho settled a case with six formerly homeless residents of Boise who had been cited in 2007 and 2008 for violating an ordinance that banned people from sleeping in any public space in the city. The plaintiffs claimed the ordinance violated the "cruel and unusual punishment" clause of the Eighth Amendment because it was enforced when they had no other place to sleep. Boise paid the six plaintiffs a total of $5,000, promised to spend $1.3 million to expand and improve the city's shelters for homeless individuals, and agreed to clarify that the challenged ordinance permitted sleeping outdoors when there was no available shelter.¹

The settlement attracted national media attention, not because of special interest in the sixty-one unsheltered homeless residents of Boise and surrounding Ada County,² but rather because the case had resulted in a decision in the United States Court of Appeals for the Ninth Circuit, Martin v. Boise,³ and a highly publicized effort by litigants in the United States Supreme Court to reverse the Ninth Circuit's holding in that decision that, "as long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter."⁴ The petition for certiorari was supported by an avalanche of amicus briefs, including those of thirty-three California cities and counties, the states of Idaho, Alaska, Indiana, Louisiana, Nebraska, South Dakota, and Texas, and the Brentwood Community Council.⁵ To the surprise of many, the Court declined to hear the case. The Court's refusal to grant certiorari and $5,000 settlement marked the end of one case, but certainly not the end of the controversy.

In contrast to Boise's sixty-one unsheltered homeless persons, in the most recent official count there were 48,041 unhoused people in Los Angeles County who lacked shelter of any kind,⁶ a number that had grown by more than 5,500 in the preceding twelve months. By way of comparison, during the same month New York City counted a total of 3,857 unsheltered homeless persons, less than one- tenth the per capita rate of Los Angeles County.⁷ In the broader context, across the entire United States, of every 100 Americans who are homeless, unsheltered and on the streets, fifty-three are in California and twenty-four are in Los Angeles County.⁸ The total numbers obscure deep disparities. A randomly chosen Black person in California is almost six times more likely to be homeless and unsheltered than a white person.⁹

The homeless crisis in California is of course not new. I began work as a legal aid lawyer for unhoused people in 1983, not long after the term "homeless" came into common use. The most obvious difference between then and now is the proliferation of highly visible encampments, makeshift shelters, and people living in vehicles. So long as homelessness remained out of view of most people, in skid rows, river bottoms, or abandoned spaces in industrial zones, attitudes of most people were generally sympathetic and tolerant. But highly visible encampments are another matter. Some sympathy for the occupants remains, but a tolerance of encampments does not.

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Virtually no one, including most people living in encampments, thinks the current situation should be accepted, that a tent or makeshift structure on a sidewalk is a substitute for even the most modest form of housing. The question is not whether encampments should be tolerated and accepted, but what can and should be done to eliminate them. Before relying on our immediate and instinctive answer, a look to the current facts and to the experience of the past several decades is warranted.

II. THE FACTS OF BEING UNHOUSED

Lawyers can argue the finer points of Eighth Amendment law. Advocates and politicians can debate the need for a "right to shelter," or an "obligation to accept shelter." But those points can often belie real world consequences. In the absence of alternatives that are better than the makeshift arrangements unhoused people make for themselves, a consequence of increased police enforcement is the physical displacement of people from one outdoor location to another. In that process, people not only lose the things that protect them from the elements, the medications and documents essential to improving their lot, and the connections of mutual support with others, they also suffer additional trauma and stress that make it even harder for them to get off the street. In the absence of better alternatives, those arrested or displaced are still homeless in a different location.

The decision in Martin discussed only the alternative of a bed in a shelter. But even in areas with high numbers of unsheltered homeless people there are shelters with empty beds, not because unhoused people do not know about them, but rather because of what they do know. As I explain below in this section, there are many reasons why a rational person might decide to move to another outdoor location rather than enter an available shelter unless the only other alternative is a jail cell. Neither the police nor emergency shelter alone will end visible homelessness.

The focus on emergency shelter is understandable and has a long history. When mass homelessness on an unprecedented scale began to emerge in the early 1980s, the immediate response of both government and advocates was to quickly ramp up the availability of emergency shelter. After all, when a natural disaster displaces people, that is what is typically done, through agencies like FEMA and the Red Cross.

But this was not a natural disaster, from which people could go back to their lives and to housing after a period of temporary assistance. These newly homeless people no longer had those lives to go back to or a foreseeable path to being able to pay for housing. Their jobs (and sometimes whole industries) were gone. Sometimes their social supports had disappeared amid the domestic violence that always increases in times of economic stress. The longer they stayed on the streets, the higher became the prevalence of post-traumatic stress disorder and depression. Many self-medicated with powerful but addictive drugs.

Nevertheless, more emergency shelter beds were made available. In one memorable 1985 episode in Los Angeles, volunteers from the construction trades unions in Los Angeles erected a 19,000 square foot shelter with 138 beds over the course of seven days.¹⁰ The problem was that no matter how many emergency beds were added, they were never enough. The policy response was then to add a new category, "transitional housing," so that people would have a place to go, awaiting "transition" to permanent housing. As might have been expected, "transitional housing" also filled up quickly, for the simple reason that there was no permanent housing that either the unhoused or those trying to help them could afford. The consequence was, and still is, that emergency shelter becomes a de facto form of grossly inferior and inadequate housing that most people can only tolerate for so long.

Many quite rational people are unwilling to live for a long period in a shelter meant to accommodate occupants only at night and often without assurances of their ability to return the next day. From the perspective of the well-housed, any emergency shelter might seem like an obviously preferable alternative to being in a tent or makeshift shelter. And it might well be, in especially cold and wet weather, at least for a time. But most of the time, in most of the more populated areas of California, there are many quite understandable reasons a person might choose to live in a tent in a makeshift encampment rather than in an emergency shelter.

Nearly all emergency shelters provide shelter on a night-by-night basis and require people to leave during the day. Virtually none permit an occupant to bring with them more than a small bag or two. Those two nearly universal rules of shelter life mean that in exchange for one night off the street a person must abandon virtually everything they have managed to put together to survive on the streets. Beyond such practical concerns, human beings are social creatures, with needs beyond survival. Emergency shelters operate on a purely individualized and single-gender basis. Going into a shelter can mean abandoning an intimate partner or best friend. Sometimes that best friend is a dog or other pet. Very few emergency shelters allow pets of any kind.

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Both real housing and encampments provide for universal human needs beyond the biological. Among those needs are privacy, autonomy, dignity, and companionship. In nearly all shelters, occupants are open to continuous surveillance by those in charge. They are often told when they can enter, when they may lie down, when they must get up, and when they must leave. In many shelters operated by private organizations, access to a cot also entails listening to sermons and other proselytizing for religious belief. Those who profess belief may be offered more than one night at a shelter. On the street these are known as the "pray to stay" missions or shelters. In my experience, most of the people who staff emergency shelters are wonderful, altruistic people. But, as in other contexts, when people have de facto authority over other people, some will abuse that authority in ways that further degrade those whose circumstances they control.

If so many unhoused...