The Cruel and Unusual Criminalization of Homelessness: Factoring Individual Accountability into the Proportionality Principle
O'Connor, Elizabeth M. M., Texas Journal on Civil Liberties & Civil Rights
I. INTRODUCTION: THE PROBLEM
In June 2005, County Judge David L. Denkin struck down the second attempt by the City Commission in Sarasota, Florida to stop homeless individuals from sleeping outdoors.1 The Commission's first attempt, an ordinance prohibiting all "camping" on public property, was ruled unconstitutional by a state court in 2004 on the grounds that it was too vague and punished innocent conduct. So, in February 2005, the Commission unanimously approved a more specific ordinance prohibiting "lodging out of doors" on any public or private property without permission from the property owner. Unlike the first ordinance, which didn't define "camping," the second ordinance included a list of "lodging"-related activities, such as making a fire, laying down blankets, and putting up a tent. However, Judge Denkin said that this second ordinance still gave police officers too much discretion, because it was not clear how many of these activities would have to occur at once in order for a person to be arrested.
Initially, Judge Denkin's decision was hailed as a victory for Sarasota's homeless population. Just two months after the decision, however, the City Commission passed yet another identically intentioned ordinance. The new ordinance makes it a crime to sleep without permission on city or private property, either in a tent or makeshift shelter, or while "atop or covered by materials." Moreover, the ordinance specifies five additional criteria, at least one of which must be observed by a police officer in order for him to make an arrest. One of these criteria is that the suspect "is asleep and when awakened states that he or she has no other place to live." In other words, the city attempted to solve the vagueness problems of its earlier anti-homeless ordinances by explicitly targeting only the homeless population. This new law has been upheld by the court which struck down the previous two.
The saga of these ordinances, as well as the city's other policies towards the homeless, earned Sarasota the title of "Meanest City" from a coalition of homeless advocates in 2006.2 However, while Sarasota may have been particularly unsubtle in its anti-homeless efforts, city laws criminalizing behavior generally associated with homelessness are increasingly becoming the norm across the country. Indeed, as of January 2006, 16% of cities surveyed had sweeping citywide prohibitions on loitering, loafing, and/or vagrancy, and an additional 20% had citywide bans on either sleeping or camping in public.3 Two cities, Des Moines, Iowa and Montpelier, Vermont, even had laws preventing property owners from giving vagrants permission to sleep on their property.4 In fact, only four cities in the United States had no legal limitations on the ability of the homeless to sleep, camp, lie or sit in public: Baton Rouge, Louisiana; Fairbanks, Alaska; Montgomery, Alabama; and New York, New York.5 New York was actually named the fourteenth meanest city in the country, because of its discriminatory enforcement of neutral laws.6
Rather than demonstrating anything exceptional about Sarasota, the fight over that city's ordinances exemplifies the legal battle that homeless advocates are currently engaged in nationwide. Indeed, the Sarasota saga's most important lesson might be its demonstration of the inherent danger of challenging anti-homeless legislation as unconstitutionally vague. This approach has been the most popular strategy for legal challenges to such legislation since the Supreme Court's decision in Papachristou v. City of Jacksonville.7 Since homeless advocates only lodge this type of vagueness challenge strategically-their actual objection to this sort of legislation is not that it inadvertently condemns the innocently napping housewife-the strategy can backfire. That is, if, instead of abandoning its quest to criminalize certain behavior often engaged in by the homeless after a successful vagueness challenge, a city reacts like Sarasota and simply makes its laws more specifically targeted to such behavior only as engaged in by the homeless, then the homeless may actually be made worse off. …