A PROSECUTORIAL SOLUTION TO THE CRIMINALIZATION OF HOMELESSNESS.

• Author: Lief, Andrew I.

INTRODUCTION 1972 I. THE CRIMINALIZATION OF HOMELESSNESS 1975 A. An Overview of Antihomeless Laws 1976 B. The Elements of Antihomeless Laws 1978 II. CRUEL AND UNUSUAL STATUS CRIMES 1979 A. Robinson and Powell: The Status-Act Distinction 1979 B. Antihomeless Laws in Lower Federal Courts 1982 III. A MISTAKEN SOLUTION: THE EIGHTH AMENDMENT 1984 A. The Doctrinal Shortcomings of Relying on the Eighth Amendment 1985 B. Why Relying on Constitutional Doctrine Is Poor Public Policy 1986 IV. A PROSECUTORIAL SOLUTION: DISCRETIONARY ENFORCEMENT OF ANTIHOMELESS LAWS 1988 A. The Benefits of Prosecutorial Discretion 1989 1. Declination 1989 2. Diversion 1989 B. Protecting the Working and job-Seeking Homeless from Prosecution 1990 CONCLUSION 1993 INTRODUCTION

More than one-third of the 580,000 homeless people in the United States are unsheltered. (1) This population includes those who sleep on the street, in cars, in abandoned buildings, and in other places not intended for human housing. (2) Some unsheltered homeless individuals choose to forego sleeping in a shelter, perhaps out of concern for their safety or because their work prevents them from abiding by a shelter's curfew. Others, meanwhile, are forced to sleep in public spaces because of insufficient shelter capacity.

The number of unsheltered homeless individuals has soared during the COVID-19 pandemic. Homeless shelters across the country have closed due to the pandemic, and those that remained open saw an exodus of residents who feared exposure to the virus in close quarters. (3) Given that the virus ultimately proved to be much less transmissible outdoors, (4) this mass dislocation of homeless people may very well have saved lives.

But living in public spaces risks devastating consequences. In cities across the United States, laws target basic human conduct that unsheltered homeless people perform in public, such as sleeping, camping, sitting, lying down, and loitering. (5) These antihomeless laws impose a range of civil and criminal penalties on the conduct they prohibit; this Comment focuses on criminal laws, because prosecuting homeless individuals--a common occurrence (6)--poses a particular risk: it undermines their ability to gain and maintain employment, the surest way out of poverty. (7)

The perception that all homeless individuals are unemployed and uninterested in working is false. Nearly half of single homeless adults work, (8) and about ninety percent of those who do not have a job want one. (9) Given these numbers, many homeless individuals would benefit if legal burdens, such as the antihomeless laws this Comment discusses, did not compound the challenges they face while working or looking for work. (10)

Rendered politically powerless by their lack of resources, (11) homeless individuals have turned to the courts to try to enjoin enforcement of these laws. (12) Courts deciding these cases have looked to two Supreme Court decisions, Robinson v. California (13) and Powell v. Texas, (14) which limit the kinds of behavior that governments can criminally punish under the Eighth Amendment. Some courts have read Robinson and Powell as drawing a distinction between an act and a status, holding that the Constitution permits punishing a person for the former but not the latter. Relying on this distinction, these courts have upheld antihomeless laws that punish acts that further basic human needs rather than the status of being homeless. (15)

Other courts, however, have read Robinson and Powell as creating a distinction between voluntary and involuntary acts, and as holding that the Eighth Amendment prohibits punishing an individual for performing the latter. These courts have reasoned that antihomeless laws impermissibly punish involuntary behavior, but only when a city has failed to provide enough shelter space to house its entire homeless population. (16) Most notably, in Martin v. City of Boise, the Ninth Circuit, the only court of appeals to have addressed the issue, held that the Eighth Amendment prohibited Boise, Idaho, from prosecuting homeless individuals for sleeping on public property, unless the city's shelter capacity exceeded its homeless population. (17) In December 2019, the Supreme Court denied Boise's petition for a writ of certiorari, leaving the issue unresolved on the national level. (18)

This Comment argues that given the lack of constitutional protections against antihomeless laws, prosecutors are better positioned than courts to mitigate the harm such laws inflict. (19) Prosecuting working or job-seeking homeless individuals--those closest to escaping homelessness--creates significant barriers to their efforts to achieve sustainable independence. (20) Therefore, prosecutors should decline to file charges when they know that a homeless defendant is seeking to enter or is already in the workforce. If charges are filed, homeless defendants who can prove their employment or their job-seeking status should be diverted out of the criminal justice system and into homeless court programs.

Part I begins by introducing the two topics central to this Comment: antihomeless laws and criminal law. Section LA surveys the devastating effects of antihomeless laws on homeless individuals. The criminalization of their conduct raises fundamental criminal law questions, which are explored in Section I.B. Next, Part II discusses Robinson and Powell, the pivotal Supreme Court cases that distinguish between laws that punish people for what they do (which are constitutional) and those that punish people for who they are (which are unconstitutional). Part II then dives into lower federal courts' misapplication of these two decisions to antihomeless laws, with a focus on the Ninth Circuit's ruling in Martin.

Part III argues that the constitutional remedy devised by the Ninth Circuit is misguided from a doctrinal and public policy perspective. To provide context for the alternative solution this Comment proposes to the dilemma antihomeless laws pose, Part IV explains the role prosecutorial discretion plays in the criminal justice system. Finally, the Comment concludes by proposing that prosecutors use their discretion to not prosecute working or job-seeking homeless individuals for violating antihomeless laws.

1. THE CRIMINALIZATION OF HOMELESSNESS

   Homelessness "is an exceptionally complex phenomenon even when it is not exacerbated by a global pandemic." (21) Many people experiencing homelessness face a Hobson's choice between living in a dangerous homeless shelter and living without shelter at all. (22) Others have no choice: they are forced to live in public spaces due to insufficient shelter capacity. The challenges that homeless individuals face are compounded by criminal laws that target people who live outdoors. Homeless individuals have successfully argued in court that when shelter space is unavailable, they should not be blamed or punished for sleeping in public. These arguments raise the question of which aspects, if any, of homeless individuals' life-sustaining conduct can be criminally punished. This Part begins to answer that question. It provides an overview of antihomeless ordinances in the United States, followed by a discussion of the criminal law elements that comprise these offenses.

   1. An Overview of Antihomeless Laws

      Antihomeless laws, which criminalize conduct associated with being homeless--including camping, (23) sleeping, (24) sitting or lying down, (25) and loitering (26)--take inspiration from the "broken windows" approach to law enforcement. According to this theory, failing to control low-level crime causes the proliferation of more serious offenses. (27) In line with this view, proponents of antihomeless laws have argued that antihomeless laws are needed because the "mere presence of street homeless in the public sphere has the effect of unraveling the social order, leading to an increase in crime and thereby driving middle- and upper-class consumers out of downtown areas." (28)

      But the merits of this broken-windows approach to law enforcement are highly contested. (29) The New York Police Department, for example, has found "no empirical evidence demonstrating a clear and direct link between an increase in summons and misdemeanor arrest activity and a related drop in felony crime." (30) Research shows that broken-windows tactics are similarly ineffective in the homelessness context: rather than deterring crime, antihomeless laws force homeless individuals "into more secluded, less familiar locations where they are more vulnerable," increasing the risk of violent crime against them. (31)

      Opponents of these laws argue that they entrench a cycle of homelessness and poverty. The cycle begins when an individual is cited or arrested for violating an ordinance, which requires the offender to appear in court to enter a plea. (32) For someone struggling to survive on the streets, the mere act of traveling to court, much less navigating the criminal justice system, is no easy task. And if past court orders and sentences have contributed to their plight, homeless individuals may fear returning to court. Not surprisingly, a research study found that nearly sixty percent of homeless offenders in Austin, Texas, failed to appear for their hearing, leading to the issuance of arrest warrants. (33) When a warrant is issued, the homeless individual's next offense then invariably leads to arrest and detention, the cost of which "far exceeds the amount of the original fine they would have had to pay." (34) These consequences can cause prolonged work interruptions, which may in turn lead to a reduction in shift hours or the loss of employment. (35) Because homeless offenders face great pressure to "plead guilty and end the ordeal of detention," (36) offenders return to the street not only homeless but criminally convicted--a status that makes finding work and achieving long-lasting independence all the more challenging. (37)

   2. The Elements of...