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Published on Friday, September 11, 2015

Constitutional concerns arise regarding the criminalization of homelessness laws

The United State Department of Justice (DOJ) recently filed a Statement of Interest regarding ordinances which they believe criminalize homelessness. The Statement of Interest warns cities that ordinances which criminalize certain behaviors, such as camping or sleeping in public places, when adequate shelter beds or other accommodations are lacking, are in violation of the Eighth Amendment prohibiting cruel and unusual punishment.

The DOJ’s statement comes after people experiencing homelessness in Boise, Idaho filed suit. In the case, the plaintiffs were convicted of violating certain city ordinances that prohibit camping and sleeping in public outdoor places. They claimed the City of Boise and the Boise Police Department’s performance of these ordinances against homeless individuals violates their constitutional rights because there is inadequate shelter space available in Boise to accommodate the city’s homeless population. They argued that criminalizing public sleeping in a city without adequate shelter space constitutes criminalizing homelessness itself, a violation of the Eighth amendment.

The DOJ agrees with the plaintiffs and cites Robinson v. California (1962) as the legal framework to follow. In Robinson the court distinguished between conduct and an individual’s status. The DOJ also cited Jones v. City of Los Angeles in its statement. In Jones a Los Angeles ordinance that prohibited sitting, lying or sleeping in a public place was struck down because the homeless individuals impacted had no option but to sleep and lie in public places. The DOJ points out that Boise’s ordinances suffer from the same constitutional issues as the stricken Los Angeles ordinance.

The DOJ is encouraging the court to adopt the analysis in Jones to evaluate Boise’s anti-camping and disorderly conduct ordinance as applied to the plaintiff’s in this case.

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