We Can Do Better: Anti-Homeless Ordinances as Violations of State Substantive Due Process Law

Article excerpt

"How does it feel To be without a home Like a complete unknown Like a rolling stone?"

-Bob Dylan1

I. INTRODUCTION

In September of 2004, a group of local business owners and professionals in Nashville, Tennessee, together with the Nashville Downtown Partnership, a local downtown improvement organization, submitted a plan to the Metro Council2 that proposed making it illegal to panhandle in the busiest areas of the city.3 Advocates of the proposed legislation argued that panhandlers "harass tourists and customers and make the city less appealing."4 Opponents viewed the proposal as nothing more than an attempt to force the homeless out of the city.5 The Nashville plan is patterned after the measures that several major American cities-including Philadelphia, Denver, and Seattle-have adopted in an attempt to deal with the epidemic of homelessness that has swept the nation in recent years.6

Homelessness was first recognized as a significant social problem in the United States in the 1980s.7 Though the problem has since become increasingly prominent in the public eye, Congress has done surprisingly little to ameliorate its effects. To date, the only major piece of federal legislation that has attempted to address homelessness is the Stewart B. McKinney Homeless Assistance Act of 1987,8 which authorized a variety of services for the homeless, including emergency shelter, transitional housing, job training, primary health care, education, and some permanent housing. While the McKinney Act was and remains landmark legislation concerning the plight of the homeless, red tape, budget cuts, and the magnitude of the homeless problem have hampered its efficacy in addressing homelessness.9

In the absence of effective federal legislation, state and city governments have been left largely to their own devices to manage the problems posed by local homeless populations. Many local governments have responded to the problems caused by homelessness by criminalizing certain conduct commonly associated with homelessness, such as begging,10 sleeping or camping in public,11 and loitering.12

Expanding the scope of the criminal law in this way and placing the homeless in jail is certainly one way of addressing homelessness. However, while such a solution will likely please tourists, merchants, and others who are made uncomfortable by the mere presence of the homeless, this approach does nothing to address the causes of homelessness or prevent the homeless from returning to the streets once they are released from jail. If the intent of local governments is to find a permanent solution to the problem-one that helps individuals overcome the circumstances that have led to their homelessness and sets them on a path toward becoming productive members of society-then criminalizing conduct that is unavoidable for the homeless is futile.

This Note argues that criminalizing acts commonly associated with homelessness is an ineffective solution to the problem of homelessness. This Note further argues that courts should strike down laws that essentially criminalize the status of homelessness as violations of state constitutional due process guarantees. A brief history of the types of legal challenges that have been brought against state and local laws targeting the homeless will be presented in Part II. Part III explains why future challenges to these laws brought under the Due Process Clauses of the Fifth and Fourteenth Amendments to the federal Constitution are unlikely to be successful. Part IV then argues that due process challenges under state constitutions are far more likely to succeed. This Note will conclude in Part V by highlighting cities that are creatively working to reduce their problems with the homeless and by encouraging advocates for the homeless to work toward the repeal or invalidation of "anti-homeless" laws and urging local governments to develop more creative and effective solutions to the problem. …