Author:Skolnik, Terry

Introduction 742 I. The Importance of Being Able to Obey the Law 744 A. Impossibility, Autonomy, and Self-Determination 744 B. Impossibility, Dignity, and Opportunities 746 C. Lack of Fair Opportunities and Lack of Complementarity 748 II. Individual Laws that Can Be Impossible to Obey 750 A. Anti-Public Sleeping Laws and Lack of Shelter 750 1. Anti-Public Sleeping Laws 750 2. Anti-Public Camping Laws 755 B. City-Wide Anti-Begging Laws and Lack of Sufficient Income 759 1. Homelessness and Panhandling 759 2. Comprehensive Bans on Panhandling 761 3. Panhandling, Lack of Reasonable Alternatives, and Lack of Opportunity 763 III. Combined Application of Different Laws 766 A. The Cumulative Effect of Different Individual Prohibitions 767 1. Anti-Loitering Laws, Anti-Sitting Laws, and the Lack of Available Alternative Spaces 767 2. Police Discretion and the Combined Effect of Different Laws 773 IV. The Role of Impossibility 776 A. Why Defenses of Necessity Should Generally Not Be Invoked Despite Impossibility 777 B. Practical Impossibility as the Foundation for Policy Change, Constitutional Challenges, and Injunctions 780 1. Impossibility to Obey the Law and Constitutional Challenges 780 2. Impossibility to Obey the Law and the Use of Injunctions 787 3. Impossibility to Obey the Law and Policy Change 783 Conclusion 786 INTRODUCTION

Beginning in the mid-1980s and continuing throughout the early 1990s, a widely enforced city of Miami ordinance prohibited people from sleeping in public and on the private property of others without their consent. (1) Around that time, there were roughly 6000 homeless people, but only enough shelter space for fewer than 700 people. (2) And these were the statistics before the first winds of Hurricane Andrew began to blow and the first house collapsed. The storm eventually ripped through the south of Florida on an unprecedented path of destruction, leaving upwards of 200,000 people homeless in its catastrophic aftermath. (3) At the time the public-sleeping ordinance was enforced, the vast majority of the city's homeless population had nowhere to sleep. (4) It was impossible for them to obey the law.

In this Article, the central issue is how difficult--and sometimes impossible--it can be for homeless people to obey the law on a consistent basis, compared to those with access to housing, and why this is objectionable. Examining this issue is of fundamental importance because imposing laws which people may not be able to consistently avoid breaking undermines the legitimacy of holding people accountable for their behavior through punishment, disregards their dignity and autonomy, and undermines the law. (5)

This Article is focused on prohibitions against conduct the homeless may not be able to avoid engaging in as part of their existence, such as sleeping in public, begging, and loitering. (6) It is not concerned with laws that are impossible for the entire population to obey, which, as Lon Fuller once observed, "no sane lawmaker, not even the most evil dictator, would have any reason to enact." (7) Instead, the analysis is more focused on the selective enforcement of laws against the homeless and whether they may not be able to avoid breaking certain laws that regulate conduct characteristic of their condition. (8)

The law can be practically impossible for the homeless to obey in three contexts. First, some individual laws--like the Miami city ordinance mentioned earlier that banned sleeping in public--comprehensively prohibit behaviors which homeless people cannot avoid engaging in as part of their daily existence because of a lack of alternatives that would make obeying the law possible. (9)

Second, in some cases, the law imposes narrow prohibitions against certain behavior which, individually, may each be possible to obey. However, the cumulative effects of these ordinances as well as property laws can amount to the near-equivalent of a comprehensive ban on prohibited activities where few legal alternatives exist. (10) My contention is that in such contexts it can be extremely difficult, if not impossible, for the homeless to exist without being penalized even though people with access to housing would have no such problems.

Third, quality of life offenses can regulate nearly every act the homeless engage in, including their movement, presence in different places, and even their sleep. (11) Because the homeless are constantly in the jurisdiction where these laws are enforced, it may be impossible for them to avoid a selective or discretionary enforcement of the laws against them, even though people with access to housing would not have comparable difficulty.

This Article has four parts. Part I briefly examines why it is important for individuals to be able to follow the laws to which they are subjected. In light of those reasons, Part II looks at examples of individual prohibitions that may be impossible to obey, including laws comprehensively prohibiting sleeping in public, camping in public, and panhandling. Part III demonstrates that the homeless may not be able to avoid breaking cumulative individual prohibitions against different conducts in addition to laws which are selectively enforced. This Article concludes by considering the legal consequences of these laws. Notably, in Part IV, I build on the work of Jeremy Waldron and argue that the defense of necessity should generally not be invoked in cases where it is practically impossible to obey the law. (12) Rather, invoking the issue of practical impossibility can be the foundation for contesting the constitutionality of laws, can lead to granting injunctions against the enforcement of laws disproportionately affecting the homeless, and can stimulate policy change in how laws are applied against the homeless.


    1. Impossibility, Autonomy, and Self-Determination

      Discussions regarding the importance of being able to obey the law can be traced as far back as Roman law. (13) More recently, several prominent contemporary legal theorists have addressed the issue in different contexts. Lon Fuller has argued that a fundamental characteristic of the law is that it should not require those subjected to it to do, or refrain from doing, the impossible. (14) In his view, the issue of impossibility is not limited to laws which generally cannot be observed by the entire population, but rather, adopting an individual capacity-oriented approach, extends the principle to "rules that require conduct beyond the powers of the affected party." (15) More directly, he ties the importance of being able to obey the law to the notions of autonomy and dignity. (16)

      With respect to autonomy, in Fuller's view the law ought to treat individuals as responsible and autonomous agents, meaning that the law recognizes their capacity to shape their own future and act as rational agents in making decisions. (17) This implies that the law must recognize how individuals live their lives and shape their own futures in accordance with the rules that guide the legality of their behavior. (18) For example, Ff.L.A. Hart analogized the law to a choosing system in which the population is informed of the rules in advance, made aware of the consequences of breaking them, and punished for choosing to violate them. (19) In such a system, individual freedom is maximized because people can weigh the consequences of breaking the law, with the choice of doing so being left up to them. (20) But when laws are impossible to obey, people never know when they will be punished and it makes it far more difficult to plan their lives. (21) The fact that breaking an impossible law is inevitable also makes the enforcement of these rules a sort of unexpected ambush, (22) where individuals lose peace of mind as they wait to be punished for a situation they cannot avoid. Such rules demean one's capacity for self-determination because they send the message that no matter how rationally one behaves or how hard one tries to obey the rules in place, they will inevitably fail and it can lead to negative consequences. Arresting or punishing people for violating these types of rules implies that individuals who are not able to obey the law are in fact making conscious and rational choices to break it. To draw an analogy described by Martha Nussbaum, the rules disingenuously treat those who are starving as if they have food but are choosing to fast. (23)

    2. Impossibility, Dignity, and Opportunities

      That it is impossible for only some people--or certain groups of people--to obey the law also raises important dignity-related concerns. Dignity implies that all individuals have inherent worth as members of the human community and are deserving of respect and concern as moral beings. (24) As Jeremy Waldron has argued, it can be construed as a type of normative status recognizing the "high and equal rank of every human person" (25) and that people's freedom should not be limited as an unwilling means to the ends of others. (26) Dignity is therefore closely tied to the notion of equality. (27) For instance, the Supreme Court of Canada has recognized that dignity is an important aspect of the constitutional right to equal treatment before the law. (28) Dignity celebrates what makes individuals different from one another and strives to treat them as equals, rather than using these differences as a justification for treating them as if they were less worthy of respect or concern. (29) Together, the notions of dignity and equality set a sort of floor for how people should be treated in a way that recognizes their high value as rational human beings of equal worth. (30)

      If the law takes these notions seriously, it must recognize that there are people in our society who do not have the same basic capacities and opportunities to obey the law like everyone else. (31) Hart famously explained the moral objection to punishing those who did not have the basic capacities...

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