JURIST Guest Columnist Sara Rankin of Seattle University School of Law discusses the effects of criminalizing homelessness in the US…

As a lawyer, I am particularly interested in how we take our impulses and fears and codify them into our laws and policies &#8212 laws and policies that serve to make some feel more comfortable, more protected. But these same laws can, even in unintended ways, make others more vulnerable, less protected and further marginalized. This process is often referred to as the criminalization of homelessness [JURIST report].

Criminalization refers to laws that prohibit or severely restrict one’s ability to engage in necessary life-sustaining activities in public, even when that person has no reasonable alternative. Examples are laws that prohibit sitting, standing, sleeping [JURIST report], receiving food, going to the bathroom, asking for help and protecting one’s self from the elements.

These are actions that none of us could forgo for long and continue to survive. Yet the act of surviving in public is so tightly regulated that people experiencing homelessness cannot avoid somehow tripping a wire and incurring significant potentially life-altering consequences.

Criminalization laws don’t have to start as a criminal charge. Many do. But many start as civil infractions &#8212 a ticket with conditions and requirements, like show up to court, avoid an area for significant period, or pay a fee. These conditions are extremely difficult for poor and homeless individuals to meet; when they fail to do so (because of sickness, lack of money, lack of transportation, mental illness, and physical disability, etc.), their civil infraction can mutate into a misdemeanor. Once an individual is saddled with a misdemeanor, they may be ineligible to access shelter, food, services and other benefits that might help them emerge from homelessness.

By criminalizing their efforts to survive in public, we have made these human beings more resistant to recovery. More likely to remain on the streets. More likely to become sick, to self-medicate, to be incarcerated and even more likely to die.

Criminalization comes at a significant cost, not just to the lives and liberties of poor men, women and children, but also to society generally: it is far more expensive to criminalize poverty and homelessness than it is to pursue non-punitive alternatives such as permanent supportive housing or mental health and substance abuse treatment.

So if it is such a bad idea, why do we criminalize visible poverty? There are many reasons, but a primary contributor is the power of our instinctive response to visible poverty. We are stained by what I call the influence of exile: deeply ingrained class and status distinctions that can inconspicuously, even unconsciously, guide us to create and enforce laws and policies that restrict the visibility of poor people in public space.

Studies show that evidence of human struggle or desperation commonly provokes fear, annoyance, disgust or anger from those who witness it. Even neurological tests show that when we are confronted with evidence of visible poverty, it elicits higher rates of negative reactions than exposure to any other marginalized trait, including traits historically associated with discrimination, such as race or gender. The fear and disgust we’ve specially reserved for poverty is frequently codified in our laws and policies &#8212 this is what I mean by the criminalization of homelessness.

Criminalization is growing nationwide. The National Law Center on Homelessness and Poverty [official website] has been tracking these laws in 187 cities throughout the country for well over a decade. Their 2016 report examined changes in criminalization laws over the last ten years, and they reported some distressing findings. For example, city-wide bans on camping in public increased by 69 percent; begging by 43 percent; standing around by 88 percent; and sitting or lying down by 52 percent. And bans [JURIST report] on sleeping in vehicles &#8212 the thin tin line between you and the street &#8212 increased by a staggering 143 percent [official report].

Homeless Rights Advocacy Project (HRAP) [official website] at the Seattle University School of Law surveyed criminalization laws in Washington state [official report] in 2015, which showed similar results. California [official report] and Colorado [official report] recently completed similar studies.

HRAP observed many other troubling trends, such as the fact that a significant number of people spend more than 90 days in jail for violating these laws. And as rates of income disparity rise in a city, so does the rate at which that city enforces criminalization laws. In other words the greater the gap between the rich and the poor in a city, the more punitive that space becomes for the poor and homeless people within its boundaries.

These are contemporary snapshots of criminalization, but we’ve been good at it for some time. Jim Crow, Anti-Okie and Sundown Town laws are just a few notorious examples of how discrimination can fuel the expulsion of “undesirable people” from public space; today we reflect on these legal artifacts with some sense of collective shame.

But many of these same historically marginalized groups are disproportionately impacted by criminalization today: people of color, single female-headed families, people with mental illness or addition, LGBTQ youth, immigrants are all disproportionately represented in poor and homeless populations compared to the general population.

This disproportionate representation of marginalized groups suffering poverty and homelessness is not a coincidence; it is a symptom of structural inequities that we all create and maintain. Common stereotypes quietly influence our judgments regarding someone else’s worthiness, and, in turn, these judgments influence how we restrict the rights and resources of poor people generally, but of visibly poor people in particular.

It is the sustained visibility of poverty that prompts us to react. We firmly want poverty and human desperation to remain private.

We perpetuate this marginalization through lenses of blame. Studies show that public support or tolerance for certain groups may turn on the degree to which society believes those group members are responsible for a particular trait. Compared to other countries, the US is particularly enamored with the “bootstrap” work ethic: the belief that, if you just work hard enough, you should avoid poverty. Many Americans believe the most significant cause of income inequality is the failure of the poor to work as hard as the more affluent.

We also commonly embrace the fiction that homelessness is simply a bad choice and that people experiencing homelessness do not want something better. We tend to assume that if someone declines an offer of service, that person deserves their fate &#8212 that person deserves society’s divestment. They deserve not to be cared about.

Societally, we rest on the assumption that emergency shelter is a solution, but it isn’t. It is a stop-gap measure that very few of us would be willing to choose for ourselves.

We must reconsider what we define as meaningful offers of shelter. Is it a reasonable offer of shelter if we require people to people to give up their family members, their beloved pets, or their only community? What about their personal belongings? Are there conditions they need to satisfy &#8212 or put another way &#8212 are there measures of privacy, autonomy or human dignity they will be required to give up?

Is it a reasonable offer of shelter if we ask another human being to give up all these things for one night of uneasy sleep next to a bunch of strangers only to be ejected back on to the street the next morning without any of these things?

The bottom line is we have taught many people to distrust services and shelter. Through experience, many people have learned that emergency shelters do not promote their sense of safety, stability, and dignity. This experience is so deeply embedded that even if a real offer of meaningful service comes along, reasonable people have already learned not to accept it. They have learned emergency responses do not create the experience of a home or even a real, human place to belong. So the next time we feel incredulous that someone would pass on an offer of “service” or shelter, we might instead consider the possibility that we often present people with a false choice and then blame them for not taking it.

So, what are solutions? If the problem is visible poverty, the solution is not to eject poor people from view (although is the primary achievement of the criminalization of homelessness). Actually we should strive for just the opposite.

The crisis of poverty &#8212 as long as it exists &#8212 must be visible in public space. Proximity is necessary to create social change. Professor Bryan Stevenson [official profile] argues that the first thing we must do to fight injustice is to get proximate to it. We must show up and see things with our own eyes. Then we will have no choice but to act. Just as importantly we can only develop viable solutions when we have an up-close view of a problem.

Proximity is one modest suggestion to make real change within ourselves. Create meaningful and sustained opportunities to get to know someone who is poor or struggling with housing instability. Volunteer at a shelter. Get to know some of the intelligent and inspiring people struggling with these challenges. In all likelihood, that proximity will convert you. It will make you feel compelled to seek the change we so desperately need.

Sara Rankin is a Professor of Lawyering Skills at the Seattle University School of Law. She is the founder and director of the Homeless Rights Advocacy Project. Her teaching is focused on legislative advocacy and issues affecting people experiencing homelessness. She also serves as Co-President of the Society of American Law Teachers (SALT).

Suggested citation: Sara Rankin, The Criminalization of Visual Poverty, JURIST – Academic Commentary, Dec. 2, 2016, http://jurist.org/forum/2016/11/Sara-Rankin-criminal-homelesness.php