Academic journal article Harvard Law Review

Criminal Law - Eighth Amendment Prohibition on Cruel and Unusual Punishment - Department of Justice Submits Statement of Interest Arguing That City Ordinances Prohibiting Camping and Sleeping Outdoors Violate the Eighth Amendment - Statement of Interest of the United States, Bell V. City of Boise

Academic journal article Harvard Law Review

Criminal Law - Eighth Amendment Prohibition on Cruel and Unusual Punishment - Department of Justice Submits Statement of Interest Arguing That City Ordinances Prohibiting Camping and Sleeping Outdoors Violate the Eighth Amendment - Statement of Interest of the United States, Bell V. City of Boise

Article excerpt

Criminal Law--Eighth Amendment Prohibition on Cruel and Unusual Punishment--Department of Justice Submits Statement of Interest Arguing that City Ordinances Prohibiting Camping and Sleeping Outdoors Violate the Eighth Amendment.--Statement of Interest of the United States, Bell v. City of Boise, No. 1:09-cv-540 (D. Idaho Aug. 6, 2015).

Homelessness continues to be a serious social problem in the United States, with more than half a million people estimated to be homeless in 2014. (1) A recent report indicates that thirty-four percent of cities impose citywide bans on camping in public, and eighteen percent of cities similarly ban sleeping in public. (2) Such bans are a cause for concern because they criminalize activity that the homeless have no meaningful choice but to conduct in public. (3) Moreover, the constitutionality of such bans has long been unclear. (4) Recently, in Bell v. City of Boise, (5) the Department of Justice (DOJ) filed a Statement of Interest (SOI) arguing that, where shelter space is unavailable, compliance with these ordinances has become impossible for the homeless, such that their "enforcement ... amounts to the criminalization of homelessness, in violation of the Eighth Amendment." (6) The DOJ urged the court to adopt the reasoning of Jones v. City of Los Angeles, (7) where the Ninth Circuit held unconstitutional the enforcement of a Los Angeles ordinance that criminalized sitting, lying, or sleeping in public when there was inadequate shelter space. (8) In so doing, the DOJ held up Jones as the relevant legal standard through which to interpret and apply the Eighth Amendment. (9) While a positive move forward, this argument perpetuates an inadequate limiting principle in Eighth Amendment jurisprudence on criminalizing homelessness. To address this concern, the DOJ would do well to advance a reading of another case, Pottinger v. City of Miami, (10) that includes a focus on the harmlessness of the conduct in question.

In 2006, the Boise City Council passed an ordinance prohibiting "disorderly conduct," which it defined to include, inter alia, sleeping in public without the permission of the owner or person in control of the space. (11) In 2009, it passed another ordinance criminalizing "camping"--"the use of public property as a temporary or permanent place of dwelling ... or as a living accommodation at anytime between sunset and sunrise...." (12) That same year, several individuals who either were or had been homeless in Boise, and who had been cited or arrested for violating one or both of these ordinances, (13) filed suit in the U.S. District Court for the District of Idaho. (14) They alleged that the City's enforcement of the Camping and Sleeping Ordinances against the homeless violated the Eighth Amendment's prohibition on cruel and unusual punishment. (15)

The district court granted summary judgment in favor of the City, finding that the Ordinances did not violate the Eighth Amendment. (16) It did so by adopting a reading of Jones that advanced a framework with two requirements: first, that the homeless have no choice but to be out in public and, second, that the City's enforcement of the ordinance at issue penalizes the homeless for activity that does not warrant punishment, thus effectively criminalizing the status of being homeless. (17) The court then found that the plaintiffs had failed to prove that "there [wa]s a class of homeless people in Boise who [were] unable to find shelter." (18) Therefore, the plaintiffs could not demonstrate that they were being prosecuted for "merely being present in public." (19) In making this finding, the court found it dispositive that the City provided a "safe harbor" to the homeless in its city parks throughout the day, and had a Special Order in place ensuring that no citations would be issued for camping or sleeping in public on nights when shelter space was not available. (20) These facts effectively mooted the plaintiffs' claims, according to the district court. …

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