Cruel and Usual Punishment – Criminalizing Sleeping Outside

What do San Francisco and Boise, Idaho have in common?  Both cities ban sleeping or camping in public places.  Both cities have more homeless people than shelter beds.

In 2009, homeless people in Boise took legal action against the Boise Police Department for citing homeless people for sleeping outside when the city does not have adequate homeless shelter space.  Their argument: criminalizing homeless people for sleeping outside when they have nowhere else to go is a violation of the 8th Amendment of the constitution barring cruel and unusual punishment.

Last week, attorneys for the US Department of Justice argued, in a Statement of Interest for the Boise case, that Boise’s anti-camping and sleeping laws are unconstitutional because:

When adequate shelter space exists, individuals have a choice about whether or not to sleep in public. However, when adequate shelter space does not exist, there is no meaningful distinction between the status of being homeless and the conduct of sleeping in public. Sleeping is a life-sustaining activity — i.e., it must occur at some time in some place. If a person literally has nowhere else to go, then enforcement of the anti-camping ordinance against that person criminalizes her for being homeless.

In San Francisco, our single adult shelter system has the capacity to shelter approximately 1,100 people.  There are currently 721 people on the city-administered wait list for a shelter bed.  Sleeping, camping, sitting, and lying down outside are illegal in San Francisco, too.

We’re not sure how the Department of Justice’s statement in the Boise case will affect court rulings in other cities (like Los Angeles, which is currently fighting a court battle for its right to cite homeless people who sleep outside) or how it may affect cities that are considering introducing bans on sleeping outside.  What is clear, though, is that it is not just radical advocates who are arguing against criminalizing homeless people for engaging in innocent acts like sleeping or sitting in public space.  The fact that the Federal government is also asserting that criminalization is a costly and ineffective non-solution to the problem of homelessness will hopefully mean that  our local governments will soon have to end their harmful practices of punishing people who have no other choice but to sleep or sit on the streets.

To learn more about how laws that target homeless people’s presence in public space have affected homeless San Franciscans, check out this report from the Coalition on Homelessness and the UC Berkeley Human Rights Center.