Laws Prohibiting Sleeping in Public Are Unconstitutional
By: Mary Pat Damrich
What if you had nowhere you could sleep without fearing punishment by the government? This is the cruel reality facing the thousands of homeless people across the United States. Although sleeping is an activity that is necessary for survival and the majority of America’s homeless shelters are overcrowded, cities across the country have enacted laws criminalizing sleeping in public. As a result of these laws, homeless people are being arrested for publicly performing a harmless activity that is necessary for survival regardless of the fact that they may have nowhere to do so in private.
The homeless is one of the most negatively stereotyped groups of people in the United States. Americans generally feel that homeless people have no redeeming qualities, and believe that they are incompetent, have bad intentions, and are untrustworthy. Because Americans would rather “turn up a nose rather than extend a hand” to the homeless, they elect “lawmakers empty of empathy” who feel the same way. Nationwide, these lawmakers are writing “anti-homeless” laws that target the homeless by making it illegal to publicly perform basic, harmless acts that are necessary for survival. These laws, which are “designed to move visibly homeless people out of commercial and tourist districts or, increasingly, out of entire cities, are often justified as necessary public health and public safety measures.” The evidence shows, however, that these laws are not only ineffective at removing the homeless from the streets, but are also unconstitutional and unnecessarily expensive for the government.
Anti-homeless laws are “the latest legislative attempt to discourage the presence of those deemed undesirable.” Laws with this underlying motive have existed throughout American history. Some examples of these laws are Jim Crow laws, which segregated the South after the Civil War,  and California’s anti-Okie law, which prohibited poor Dustbowl immigrants from entering the state in the 1930s.
Throughout 20th century, various “vagrancy ordinances” were enacted across the country to discourage the presence of the “wandering poor.” During this time, “vagrants could be cited or jailed under laws selectively enforced against anyone deemed undesirable.” The era of vagrancy ordinances ended in 1972 when the Supreme Court of the United States struck down a municipal vagrancy statute as unconstitutionally vague in Papachristou v. City of Jacksonville. In Papchristou, the Court’s stance was based upon its opinion that the statute “encourage[d] arbitrary and erratic arrests and convictions” and “ma[de] criminal activities which by modern standards [we]re normally innocent.” The Court found that the statute placed “unfettered discretion […] in the hands of the Jacksonville police,” and feared the police “could use the law against undesired groups as a ‘convenient tool for ‘harsh and discriminatory enforcement.’”
The modern “vagrants” being targeted by today’s lawmakers are the homeless. While homelessness has always been a problem in the United States, the economic recession of 1980-1981 led to an explosion of homelessness across the country. During this time, some cities, such as New York, “saw homeless populations increase by nearly 350% in eight years.” With this drastic increase in number of homeless people in the United States, “cities became frustrated rather than sympathetic, causing a resurgence in old attitudes towards the ‘wandering poor.’” As a result, local lawmakers began drafting legislation aimed at expelling the homeless from their cities.
Because the holding in Papachrisou deemed vagrancy laws unconstitutionally broad, lawmakers now have to write laws criminalizing the homeless more narrowly to pass constitutional muster. To avoid being deemed unconstitutionally vague, these narrower laws are aimed at specific behaviors (sleeping, begging) in specific places (on sidewalks, in parks), at specific times (7 a.m.–9 p.m., 9 p.m.–7 a.m.). These laws are known as “anti-homeless laws,” and most of them are still enforced today. In fact, anti-homeless laws are becoming increasingly more widespread, and they continue to proliferate at unprecedented rates across the country.
Of all the anti-homeless laws, laws criminalizing sleeping in public are the most obviously targeted towards the homeless, because homeless people are more likely to lack a place to sleep indoors than any other group of people. The number of laws criminalizing sleeping in public has seen a massive increase in the United States during the last few years, which is largely attributed to the national trend of revitalizing the downtown areas of cities. Investors in these cities are revitalizing downtown areas that had high rates of homelessness and low home values and are turning these areas into neighborhoods with high home values. Because the visible presence of homeless people in a neighborhood lowers the value of nearby homes, investors have turned to local governments for a response to the presence of the homeless in these places in order to protect their investments. This response has been in the form of laws criminalizing acts such as sleeping in public under the guise of protecting public safety. However, there is rarely any evidence that supports these claims.
Given the circumstances in which they have arisen, restrictions on sleeping in public are an inappropriate reaction to the problem of homelessness. It is currently estimated that over 700,000 people in the United States are homeless on any given night. This is largely due to a shortage of shelter options for these people, as many cities across the country “lack the number of emergency shelter beds or transitional housing slots needed to house their homeless citizens.” Moreover, even those who could potentially afford housing may not have the option to purchase a home, because many cities “lack the affordable housing necessary to accommodate their low-income residents.” Therefore, laws criminalizing sleeping in public are causing for homeless people to be arrested for this act when they have nowhere else to sleep.
Laws criminalizing sleeping in public raise important constitutional concerns, and many courts have invalidated these laws on the grounds that they violate the Eighth Amendment. Because sleeping is necessary for survival, and the homeless have nowhere to sleep in private, many courts have held that the act of a homeless person sleeping in public is inseparable from his status as a homeless person. Therefore, criminalizing the homeless for sleeping in public is an impermissible criminalization of status, in violation of the “Status Crimes Doctrine” of the Eighth Amendment.
This view is supported by the Department of Justice. In 2015, the Department of Justice filed a statement of interest in a lawsuit brought by seven homeless people, arguing that it is unconstitutional to punish homeless people for sleeping in public if there is no shelter space available. The Department of Justice’s statement says that it “should be uncontroversial that punishing conduct that is a universal and unavoidable consequence of being human violates the Eighth Amendment. […] Sleeping is a life-sustaining activity—i.e., it must occur at some time in some place. If a person literally has nowhere else to go, then enforcement of the anti-camping ordinance against that person criminalizes her for being homeless.”
While the presence of homeless people may be unsightly to some, in most cases the presence of these people peacefully sleeping cannot be deemed a direct threat to public safety. When cities impose criminal penalties on homeless people for performing necessary, life-sustaining activities in public places when there are no sheltered alternatives, these laws are criminalizing the homeless purely for their status. Therefore, these laws should be regarded as an impermissible criminalization of status in violation of the Eighth Amendment.
 Charles M. Blow, A Town Without Pity. The New York Times (August 9, 2013), http://www.nytimes.com/2013/08/10/opinion/blow-a-town-without-pity.html.
 POLICY ADVOCACY CLINIC, UNIV. OF CAL., BERKELEY, SCH. OF LAW, CALIFORNIA’S NEW VAGRANCY LAWS: THE GROWING ENACTMENT AND ENFORCEMENT OF ANTI-HOMELESS LAWS IN THE GOLDEN STATE 6 (2015), http://www.homelesslivesmatterberkeley.org/pdf/CA_New_Vagrancy_ Laws.pdf.
 Papachristou v. City of Jacksonville, 405 U.S. 156 (1972).
 Casey Garth Jarvis, Homelessness: Critical Solutions to A Dire Problem; Escaping Punitive Approaches by Using A Human Rights Foundation in the Construction and Enactment of Comprehensive Legislation, 35 W. St. U. L. Rev. 407 (2008) discussing Papachristou.
 Maria Foscarinis et. al., supra note 5.
 Emily Badger, It’s Unconstitutional to Ban the Homeless from Sleeping Outside, the federal Government Says. The Washington Post (August 13, 2015). https://www.washingtonpost.com/news/wonk/wp/2015/08/13/its-unconstitutional-to-ban-the-homeless-from-sleeping-outside-the-federal-government-says/?utm_term=.1b959d492b81.