Homeless legal advocacy: new challenges and directions for the future.

• Author: Hafetz, Jonathan L.

When large numbers of homeless people began appearing on the streets of American cities in the late 1970s, a sense of crisis galvanized advocates, the media, and policymakers. (1) Now, over two decades later, there are more homeless people than ever, and numbers are rising rapidly, particularly among families with children. (2) The economic expansion of the 1990s not only failed to end the crisis, but also placed greater pressure on housing markets, driving up rents and increasing the scarcity of affordable housing for low-income individuals and families. (3) The recent recession has caused a sharp increase in the homeless population, once again making homelessness front-page news. (4)

Yet, the sense of shock and emergency has all but vanished. Homelessness has been studied exhaustively by social scientists and covered extensively in the media. Programs and services for homeless people have become permanent and institutionalized, with a system of public and private shelters, an array of service providers, and legal rules governing the rights of homeless people. (5) What was once seen as a temporary crisis has become a fixed part of the social and political landscape.

This Article examines the role of lawyers for homeless people. (6) It argues that while even the most zealous legal advocacy cannot alone solve homelessness, it remains an important tool because of the assistance it provides to individuals, its impact on broader legal rules, and its potential role in shaping public perception and debate . (7)

The Article also maintains that legal advocacy works best when combined with a holistic approach that addresses homeless clients' non-legal needs, such as housing placement, case management, medical and psychiatric care, job training, and substance abuse counseling. (8) It further argues that, to the extent possible, lawyers for homeless people should focus their efforts and resources around those areas that research and experience have identified as the leading causes of homelessness and the most open to solutions. (9)

Part One summarizes the growth of homelessness during the past two decades. It then describes its most prominent features and underlying causes.

Part Two describes the evolution of homeless legal advocacy. First, it looks at the initial wave of litigation during the 1980s over the right to emergency shelter for the homeless. It then examines the second phase of litigation during the 1990s that challenged the attempts by municipalities to reduce the visible homeless population through various measures, such as anti-vagrancy, anti-camping, and "quality of life" ordinances. While this litigation has led to important victories and captured the public's attention (though not always its wholehearted support), it remains only a part of the picture. Suing over the right to emergency shelter or the right to panhandle on streets or sleep in parks is critical to many homeless people, but it does not address the underlying causes of homelessness, such as the crisis of affordable housing, decreasing income and public benefit levels, and lack of access to other needed services.

Part Three outlines the continued importance of legal advocacy for the homeless. It addresses critiques of legal service models, and it explains why legal representation, though inherently limited, remains vital to this vulnerable and disempowered population. It then argues that, where possible, such representation should be tailored to the problems that research and experience have shown to be the most significant causes of homelessness and that may be addressed through legal advocacy. It also discusses the potential of litigation to affect public debate and dispel negative stereotypes about homeless people. It next describes the importance of developing models of legal advocacy in holistic settings where critical non-legal needs of homeless people may be met. While lawyers will not solve a problem as complex and deeply rooted as homelessness, they still have an important role to play.

1. HOMELESSNESS AND ITS CAUSES

   There have always been homeless people in America. (10) It was not until the nineteenth century, however, that a large group of transient, family-less laborers became institutionalized in American cities. (11) During the worst years of the Great Depression of the 1930s, when one-quarter of the workforce was unemployed, the number of homeless people skyrocketed, reaching as many as 1.5 million. (12) In the 1950s and 1960s, over a million people, many with a history of mental illness and/or chemical dependency, lived in sub-standard housing in skid row areas that were growing closer to expanding commercial and administrative activities. (13) What has changed is the nature of homelessness, the public's understanding of the term, and the perception of homeless people themselves. (14)

   Since the late 1970s, the number of people without a place to sleep at night has steadily grown. (15) Even during the economic boom of the 1990s, homelessness increased. (16) In contrast to the 1950s and 1960s, when many homeless were single male adults sleeping in cubicle and residential, single room occupancy hotel rooms ("SROs"), the last two decades have seen a sharp increase in the number of homeless people living on the street, including single women and families. (17) The term "the new homeless" has been used to describe this new, more diverse homeless population. (18) The past two decades have seen an unprecedented expansion of national media attention, legal activity, government programs, and not-for-profit service providers.

   1. Defining the Term and Estimating the Number

      The term "homeless" is itself of recent origin, purportedly coined by advocates in late 1970s to describe the troubling phenomenon of countless individuals, mostly adult males, sleeping on the streets, in parks, and in other public places. (19) Broad definitions of the term include not only those people living on the streets and in shelters, but also those who, lacking a home of their own, are doubled-up with relatives or friends. (20) A narrower, more commonly used definition limits homelessness to those individuals who lack a fixed and regular address and whose primary night-time residence is a public or private place "not designed for, or ordinarily used as, a regular sleeping accommodation for human beings," or a shelter or similar facility designed to provide "temporary living accommodations" for persons with no other residence. (21) How the term is defined has important consequences, affecting popular sentiment, the allocation of public resources, and the delivery of care by service providers. (22) The term has also proven useful to advocates in arousing public concern and fighting for the right to shelter. (23) Some commentators note, however, that it has also shifted the focus away from those not literally "homeless," but nonetheless with significant shelter problems, (24) and limited the growth of more broadly based anti-poverty coalitions. (25) The use of the term can also obscure just how diverse the homeless population is in its demographic composition and legal needs.

      Estimating the size of the homeless population has been a significant source of controversy since homelessness galvanized national attention over two decades ago. (26) Estimates vary depending on the methodology used, including whether a particular homeless count is measured on a given day or over a period of time. (27) In the late 1970s, advocate Mitch Snyder claimed that over one million people were homeless; in 1982, he and Mary Ellen Hombs raised their estimate to between two to three million. (28) Some social scientists contended that those figures were exaggerated. (29) A 1984 study by the United States Department of Housing and Urban Development ("HUD") estimated that between 250,000 to 350,000 people were homeless; (30) a 1987 study by the Urban Institute put the number at between 500,000 and 600,000 people; (31) a 1990 national survey based on telephone interviews of over 1,500 adults estimated that 8.5 million people were homeless at some point during the period from 1985 to 1990. (32)

      Dennis P. Culhane's "path-breaking" study of turnover rates in shelters in New York City and Philadelphia, which produced an unduplicated count of the actual number of homeless people in city shelter systems over a period of time, revealed that three percent of Philadelphia's population used the public shelter system between 1990 and 1992, and that three percent of New York's population received shelter during the same period. (33) The work of Culhane and others conclusively demonstrated that homelessness was a much more widespread problem than the government had previously acknowledged. (34) A recent study now estimates that between 700,000 to 800,000 people are homeless each night and that between 2.5 to 3.5 million people experience homelessness each year. (35) The recent economic downturn, coupled with the impact of federal welfare reform, appears to have caused another sharp jump in homelessness. (36) Yet, debate continues over the number of homeless people who remain outside the growing network of shelter systems. (37)

      Even more debate rages over the causes of homelessness than the number of homeless people. These debates are not merely academic exercises, but influence how scarce public and private resources should be directed. Although the homeless population defies easy generalization, (38) years of research and experience indicate several patterns. Single adult men still constitute a majority of homeless Americans, (39) although families with children represent one of the fastest growing segments of the homeless population, (40) making up about one-quarter of the homeless population on a given day. (41)

      Studies conducted by the National Institutes of Mental Health ("NIMH") during the mid-1980s estimated that twenty to twenty-five percent of homeless single adults had lifetime...