Housing and Criminal Justice

Over of Issue

The “War on Drugs” and welfare reform have affected much of our nation’s poverty reduction efforts in the past several decades, including programs intended to address housing poverty. Examples include several laws that give public housing agencies (PHAs) much wider discretion over applicants for project-based Section 8, Housing Choice Voucher, and public housing programs. Private landlords and property management companies also have their own rules unfairly screening applicants.

The punitive restrictions put in place by Congress and HUD coincide with an increase in housing insecurity and homelessness among those reentering society from the justice system. In many cases these individuals are among the people that need housing assistance most. Released prisoners face significant stigma, especially when applying for housing. In 2018, the Prison Policy Initiative estimated that formerly incarcerated people were ten times more likely to be homeless than the general public. 

"In 2018, the Prison Policy Initiative estimated that formerly incarcerated people were ten times more likely to be homeless than the general public." 

The Prison Policy Initiative also found that 15% of incarcerated people experience homelessness one year prior to entering prison. People who have been to prison just once experience homelessness at a rate seven times higher than the general public. Black people are disproportionately imprisoned, and formerly incarcerated Black women experience four times the risk of homelessness compared to white men.

The barriers that criminal justice-involved people face when attempting to reenter society, particularly in finding housing, are profound and deeply concerning. There is a revolving door between people leaving the criminal justice system, struggling to find housing, and ending up homeless—only to be criminalized while they are homeless. Read further to learn more about the various roadblocks people face when trying to secure housing after being involved with the criminal justice system, but also the solutions communities and advocates are advancing.

Criminalization of Homelessness

The criminalization of homelessness in the U.S. has a long history, with laws against “vagrancy” dating back to the 18th century. These laws punished people experiencing homelessness for engaging in activities required for survival. The Supreme Court decided laws against vagrancy were too broad and declared them unconstitutional in 1972. Cities, however, still pass ordinances punishing people experiencing homelessness for engaging in life-sustaining activities in public, including sleeping, eating, camping, panhandling, or living in vehicles. 

People already disproportionately affected by homelessness – including people of color, LGBTQ individuals, and people with mental or physical disabilities – are also more likely to be impacted by criminalization.

Supreme Court Refuses to Hear Boise Decision

In October 2009, eleven people experiencing homelessness sued the city of Boise, Idaho, for enforcing laws that banned sleeping or camping in public places. By September 2018, Martin v. Boise made its way to the 9th Circuit Court of Appeals, a federal court with authority over many western states. The court ruled that people experiencing homelessness cannot be punished for sitting, lying down, or sleeping outside on public property if they have nowhere else to go. 

In response to the decision, the City of Boise requested the Supreme Court review the case, and in December 2019 the Supreme Court announced they would not consider Martin v. Boise. This decision means that the 9th Circuit ruling – that people who are homeless cannot be criminally punished for simply trying to survive – will be upheld in the states under the 9th Circuit’s authority. The decision also sets an important example for other courts that might consider similar lawsuits in the future.

Marbut Appointed to Head USICH

The U.S. Interagency Council on Homelessness (USICH) coordinates the federal response to homelessness across 19 federal agencies and gives local governments guidance on the best ways to address homelessness. For more than a decade, the agency has recommended “Housing First” solutions to homelessness. Housing First stresses the importance of providing people experiencing homelessness with safe, stable, accessible housing before trying to address other underlying problems they might have, such as substance abuse or an untreated mental illness. The effectiveness of Housing First is supported by years of research. 

In November 2019, President Trump appointed Robert Marbut as executive director of USICH. Before his appointment to USICH, Dr. Marbut had started his own company consulting with various cities on solutions to homelessness. His “solutions” include setting up large-scale shelters with treatment facilities, where people experiencing homelessness “earn” food and the ability to sleep inside through “good behavior.” 

Dr. Marbut rejects the proven success of Housing First and has said cities enable homelessness by providing free meals and allowing people to sleep in public places. 

These statements reflect Dr. Marbut’s belief that homelessness is caused by peoples’ personal failings, ignoring the systemic inequalities and lack of affordable housing for extremely low-income people that actually cause homelessness.

Dr. Marbut says he does not support large-scale arrests of people experiencing homelessness, but he has recommended expanding law enforcement’s ability to incarcerate or fine people experiencing homelessness for violating minor laws. Advocates express concerns that the appointment of Dr. Marbut will bring a retreat from proven Housing First efforts and increased criminalization. 

Housing Not Handcuffs

Every day across America, thousands of people experiencing homelessness are arrested, ticketed, or fined simply for trying to survive in the absence of adequate housing. In response, the National Law Center on Homelessness & Poverty (NLCHP) and the National Coalition for the Homeless (NCH) launched the Housing Not Handcuffs campaign in 2016 to unite people and organizations that previously had not worked together around the goal of ending the criminalization of homelessness. The effort has built a network of more than 1000 endorsers and 300 organizations (including NLIHC) with various missions and wide-ranging approaches. It includes people with lived experience, elected officials, housing justice attorneys, civil rights groups, homeless and housing service providers, and smart-government consultants. View a list of endorsers and join the campaign at: http://housingnothandcuffs.org/endorsements/

NLCHP detailed the problem of homelessness criminalization in its Housing Not Handcuffs 2019 report, including lots of helpful information for advocates confronting local ordinances and police practices that criminalize homelessness. NLCHP finds that criminalization of homeless populations has increased dramatically in recent years, with 72% of 187 cities surveyed having at least one law restricting camping in public and an astonishing 55% of cities having laws restricting the mere act of sitting or lying down in public spaces.

The authors also offer a number of case studies and solutions to criminalization, calling for efforts to end homelessness instead of punishing it. They call for the broader adoption of the “Housing First” model of rapidly rehousing people experiencing homelessness and providing them permanent supportive housing. The authors urge policy makers to expand federal housing subsidies serving the lowest-income individuals. Housing Not Handcuffs calls on governments to empower low-income renters with “just-cause” eviction protections and right to counsel. The campaign has a wealth of fact sheets, model policies, talking points, and sample op-eds advocates can use to join in the call for “Housing, Not Handcuffs” at:  http://housingnothandcuffs.org/