The Supreme Court leaves in place a decision that prevents criminalizing the habits of the homeless.
By Brice Maryann, FASLA
With nowhere else to go, people experiencing homelessness increasingly occupy spaces designed by landscape architects: parks, medians, overpasses, stream corridors, and urban forests. Fearful of this new phenomenon, many communities have made it illegal to ask for change, sleep on benches, or pitch tents in public. A recent action by the United States Supreme Court may stem this tide of reactive stigmatization, criminalization, and incarceration. While homeless advocates and constitutional scholars hope that it may force cities to pivot toward a more comprehensive, proactive set of strategies to help people exit homelessness, they are also wary of recent signals from the federal government that suggest a doubling down on counterproductive punitive approaches.
Between 2007 and 2009, Boise, Idaho’s criminal justice system cited, fined, and sentenced Janet Bell and Robert Martin for violating the city’s new ordinances that made it illegal for anyone to be “occupying, lodging, or sleeping in any…place…without…permission,” including the use of “streets, sidewalks, parks, or public places as a camping place at any time.” Though they were members of the public, sleeping in the city’s public spaces had been deemed a crime.
Following their guilty verdicts, Martin, Bell, and other homeless people who had been cited sued the City of Boise for violating their Eighth Amendment protections against cruel and unusual punishment. They argued that the city had not afforded them any legal location to carry out the basic activities that are necessary for survival, such as sleeping or using the restroom. They argued the public spaces of the city were the only places that were feasible for them to lay their heads. Supported by a legal team from the National Law Center on Homelessness & Poverty, Idaho Legal Aid Services, and the law firm of Latham & Watkins LLP, the litigants asked for their records to be expunged, fines restored, and for the ordinance to be declared unconstitutional.
On December 16, 2019, the Supreme Court ended a decade-long legal battle by turning down a request from the City of Boise, supported by hundreds of other cities, to reconsider the case. The justices’ decision in the Martin v. City of Boise case effectively upheld a Ninth Circuit Court ruling that “as long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter.” Robert Martin and Janet Bell had been right; arresting someone for trying to stay alive when there were no other options was a violation of the Constitution.
The judges’ ruling also acknowledged the catch-22 of chronic, unsheltered homelessness: Criminalizing “life-sustaining activities” without providing a legal place to carry out those activities makes it harder for people to exit homelessness. Sara Rankin, an associate professor at the Seattle University School of Law and the director of the Homeless Rights Advocacy Project at the university’s Korematsu Center, describes the streets as places where “diagnosable disabling conditions like untreated mental illness and substance abuse disorders” make it that much harder to stabilize one’s life without intensive social services. Layering a criminal record on top of these already formidable obstacles makes exiting from homelessness all but impossible. The ramps out of homelessness—access to social services, placement into permanent supportive housing, entry into job training programs—get pulled up when you have a criminal record.
“The best and most proven cost-effective solution [to homelessness],” says Rankin, is “permanent supportive housing.” However, the Martin decision explicitly does not call on cities to provide this accommodation. The Ninth Circuit in its ruling quoted a previous decision that stated: “We in no way dictate to the City [of Boise] that it must provide sufficient shelter for the homeless, or allow anyone who wishes to sit, lie, or sleep on the streets…at any time and at any place.”
The limited scope of the Ninth Circuit’s findings present landscape architects with the opportunity to help policy makers consider the spatial, infrastructural, legal, fiscal, and ethical manifestations of homelessness in American cities. Where can people sleep or use the restroom? At what times of day? For example, if someone is sleeping in such a way that they are impeding the path of travel along a sidewalk (a civil rights violation under the Americans with Disabilities Act), the Martin decision suggests that a jurisdiction could regulate this behavior in order to balance competing, legitimate public interests if the jurisdiction has provided an alternative, public location where a person can sleep.
The small farming community of Walla Walla, Washington, offers an instructive example of ways cities might respond to the Martin decision. Far from the swelling, stereotypically progressive coastal cities, this town of just over 30,000 people in the southeastern part of the state relies on $145 million that the wine industry brings to town. When people experiencing homelessness began to panhandle downtown, sleep in doorways, and pitch tents in parks, the local merchant association worried that their presence would stifle tourism. As calls rose for the city’s policy makers to ban these activities, the city attorney, observing what was happening with the Martin case, understood that an outright ban on camping would not pass constitutional muster.
Working with a newly formed, volunteer-run group, the Walla Walla Alliance for the Homeless, the city began trying different approaches. “We decided that we would see if we couldn’t give [homeless people] a place to go. And once we did that, it changed the community. It changed downtown, and it changed the lives of the [homeless] folks that are here,” says Chuck Hindman, a volunteer and former board member.
The process for finding the right solution was difficult, not least because there is no public housing agency in Walla Walla. Initial plans to build tiny houses in single-family backyards met formidable NIMBY opposition. Hosting a sanctioned tent encampment at one of the city parks over a brutally cold and icy winter offered “lots of lessons learned” about what not to do. Yet the city and the alliance persevered. Today the organization hosts an orderly, well-run Sleeping Center on a publicly owned parcel that provides anyone who needs it a place to sleep at night.
Visiting the nondescript gravel lot, a mile and a half from downtown, you find 31 unheated Conestoga huts, six feet by 10 feet, laid out in small, tidy clusters. From early in the evening to the morning, people in the city who need a place to stay can avail themselves of the beds, showers, food, lockable storage totes, and community offered at the Sleeping Center. Plans are in the works for a small garden. People began coming to the Sleeping Center, Hindman says, not “because we were all that much more comfortable,” as the huts are spartan and uninsulated. “They were here because we are safe. And if you are a homeless person, the hardest thing to find is a safe place to sleep at night.”
Part of that sense of safety results from a redesigned relationship with law enforcement. If anyone acts too rowdy—Hindman finds that, often, incoming clients feel a need to test the boundaries after the relative lawlessness of the street—attendants can call the police to trespass the offending person for the night. Rather than being processed through the criminal justice system, Deputy City Manager Byron Olson handles the infraction administratively: “If you were loud, noisy, and obnoxious and you kept arguing with your neighbors, that would probably be a 24-hour trespass. If you brought alcohol or drugs in, that could be a longer period, and if you assaulted somebody or hit somebody, that could be upward of 30 days.” These consequences help other Sleeping Center clients feel secure, because they “started to understand that there are rules, which made them feel better because they knew they had a safe place to sleep,” Olson says.
By minimizing the involvement of the criminal justice system, the city has lowered costs, increased chances for homeless people to find viable housing exits, and allowed police officers to focus on more important problems. The close collaboration between the nonprofit and the city also led to new protocols about notifications. When the Sleeping Center is full—as it is on most nights—staff call the police to let them know that if any people experiencing homelessness are sleeping outdoors, they should not be cited.
For Walla Walla, which did not have a well-developed social service infrastructure, the Sleeping Center is both a demonstrable success and a work in progress. The Alliance for the Homeless is now developing case-management protocols to help its clients secure identification, connect with services, and reestablish relationships with estranged family members. Yet more needs to be done to find viable exits from homelessness. “We’re working every day to find housing for our people. We have a less than 2 percent vacancy rate in Walla Walla, and landlords will ask for first month’s rent, last month’s rent, and a damage deposit. And if you present them with a [Section 8] voucher, the amount up front goes way up; it may double. We just don’t have enough for affordable housing,” Hindman says.
This focus on housing, referred to as Housing First, is both the critical opportunity and key gap in creating exits from homelessness for most communities. Proven again and again for both its efficacy and cost-effectiveness, Housing First acknowledges that having a safe, stable, supportive place to sleep is the first, essential step in leaving homelessness, which is why efforts like the Sleeping Center are viewed as an important triage. Despite long-standing federal support for Housing First policies, advocates worry that the Trump administration plans to redirect resources toward more punitive measures.
The administration laid the foundation for these fears in the fall of 2019. Over several weeks, President Trump excoriated Los Angeles and San Francisco for their visible homelessness. Then Secretary of Housing and Urban Development (HUD) Ben Carson toured a large, empty industrial facility near the Los Angeles International Airport, stoking fears of federally orchestrated roundups and the warehousing of Skid Row’s sizable homeless population. Shortly thereafter, the White House’s Council of Economic Advisers released a report that undercut many of Housing First’s tenets. Advocates felt as though they were in a through-the-looking-glass moment when they learned the executive branch now considered housing aid to be an incentive for homelessness, contradicting long-recommended federal best practices that HUD had publicly affirmed less than 18 months earlier.
When the U.S. Interagency Council on Homelessness (USICH) Executive Director Matthew Doherty was asked to resign just before Thanksgiving, constitutional experts’ fears were realized when Robert Marbut Jr., a homelessness consultant and former San Antonio City Councilmember, was nominated to be the head of USICH. Marbut’s self-declared philosophy of the “velvet hammer” places “Housing Fourth.”
Marbut’s playbook, Rankin says, is “not to improve outcomes for the most vulnerable people; it’s to remove [homeless people] from view.” She expects a new executive order to be forthcoming that “will identify federal facilities to warehouse chronically homeless people. The [Trump administration] has done something very similar in migrant and refugee camps, and we know what happens when large masses of people are removed from public view. Not only are people’s human rights violated, but people die.”
In the short term, communities that are concerned about this new federal approach might consider using the Walla Walla model as preemptive mitigation. By using public land to host low-cost, temporary housing, cities could create safer environments for their citizens who are experiencing homelessness, present a more orderly public realm, and avoid the kind of costly, decades-long litigation that will undoubtedly follow any constitutionally questionable federal action.
CORRECTION: The print version of this story incorrectly referred to the U.S. Interagency Council on Homelessness as the U.S. Interagency Coalition on Homelessness. It has been corrected here.