Is Homelessness a Crime?

In all the hubub over the en banc Ninth Circuit's decision in Jespersen on Friday, as thoroughly recounted here by Gowri, I didn't notice that my favorite court of appeals also decided the L.A. homelessness case, Jones v. City of Los Angeles.

In short, Judge Wardlaw, writing for a divided panel, held that the Eighth Amendment, on the limited facts of the case, prohibited the imposition of criminal punishment based merely on the fact that someone is "homeless." [The L.A. ordinance at issue provides that "No person shall sit, lie or sleep in or upon any street, sidewalk or other public way."]

In her words:

just as the Eighth Amendment prohibits the infliction of criminal punishment on an individual for being a drug addict; or for involuntary public drunkenness that is an unavoidable consequence of being a chronic alcoholic without a home; the Eighth Amendment prohibits the City from punishing involuntary sitting, lying, or sleeping on public sidewalks that is an unavoidable consequence of being human and homeless without shelter in the City of Los Angeles.

We do not suggest that Los Angeles adopt any particular social policy, plan, or law to care for the homeless. We do not desire to encroach on the legislative and executive functions reserved to the City Council and the Mayor of Los Angeles. There is obviously a “homeless problem” in the City of Los Angeles, which the City is free to address in any way that it sees fit, consistent with the constitutional principles we have articulated. See id. By our decision, we in no way dictate to the City that it must provide sufficient shelter for the homeless, or allow anyone who wishes to sit, lie, or sleep on the streets of Los Angeles at any time and at any place within the City. All we hold is that, so long as there is a greater number of homeless individuals in Los Angeles than the number of available beds, the City may not enforce section 41.18(d) at all times and places throughout the City against homeless individuals for involuntarily sitting, lying, and sleeping in public. Appellants are entitled at a minimum to a narrowly tailored injunction against the City’s enforcement of section 41.18(d) at certain times and/or places.

In a fairly angry dissent, Judge Rymer argued that the plaintiffs both lacked standing and a substantive claim on the merits, at least partially because "Los Angeles Municipal Code (LAMC) § 41.18(d) does not punish people simply because they are homeless. It targets conduct – sitting, lying or sleeping on city sidewalks – that can be committed by those with homes as well as those without."

There's a lot that's interesting here, not the least of which is the role of Judge Wardlaw, who is closely interconnected with the L.A. political scene. But the deeper issue is what I take to be the negative implication of the majority's holding: If there were enough beds for the homeless in L.A., then the L.A. ordinance would not violate the Eighth Amendment. In other words, the state can force homeless people into shelters simply by (a) providing enough beds, regardless of the conditions at the shelter; and (b) criminalizing public sleeping.

Maybe that's how the law should be (I'm not so sure, myself), but this seems to totally sidestep the real question: Can cities force homeless people into shelters?

An interesting read, either way, but only the beginning of the debate, methinks.

Update: To give credit where credit's due, I should note that both Orin and Doug beat me to the punch, and have their own interesting thoughts. [Spend one weekend away from blog-land, and this is what happens!]