A Dream Denied:
The Criminalization of Homelessness in U.S. Cities
Criminalization Measures Violate Human Rights Norms
While laws and practices that criminalize homelessness may violate domestic constitutional law, these measures also may violate international human rights law.
I. Using International Human Rights Law in the U.S.
The United States has signed international human rights agreements, many of which prohibit actions that target homeless people living in public spaces. Although the U.S. had signed and/or ratified several human rights treaties that would prohibit actions that criminalize homelessness, those treaties are not directly enforceable in U.S. courts (i.e., “self-executing”). However, once a country has signed an international treaty, it is obligated not to pass laws that would “defeat the object and purpose of [the] treaty.” Even if a treaty is not directly enforceable in domestic courts, international human rights treaties can be used persuasively to support legal arguments based on domestic law. For example, if the domestic law is ambiguous on a certain topic, courts can turn to international law for guidance.
II. Provisions in International Law to Support Combating Criminalization
The U.S. Supreme Court has not ruled explicitly to protect the right to intrastate travel. However, the right to movement has been established in international human rights documents, and has been considered customary international law by both scholars and domestic courts. The International Covenant on Civil and Political Rights (ICCPR), a treaty signed and ratified by the U.S. (though not self-executing), contains provisions that protect the right to movement. The Human Rights Committee (“HRC”), which oversees the ICCPR, states that the right to movement and the freedom to choose your own residence are important rights that should only be breached by the least intrusive means necessary to keep public order. Many laws that target homeless people living in public spaces interfere with their right to freedom of movement, by either keeping them out of certain areas in a city or forcing them to move to other spaces involuntarily.
In addition, the majority of international human rights agreements have non-discrimination clauses. The ICCPR protects “equal protection of the law” and prohibits discrimination based on a variety of statuses. The United States participated in the 1996 Second United Nations Conference on Human Settlements and is signatory to the Habitat Agenda, which states that no one should be “penalized for their status.” Laws that criminalize panhandling or performing life-sustaining activities in public, such as sleeping and sitting, target homeless people based on their economic and housing status. Other laws that are more neutral, such as loitering or public intoxication laws, are frequently applied in a discriminatory manner against homeless persons.
Forced evictions have long been contrary to international human rights agreements, and the United Nations repeatedly has emphasized the importance of a person’s security of tenure in his or her land and home in raising his or her standard of living. In addressing the issue of forced evictions, the Habitat Agenda explicitly prohibits punishment of homeless persons based on their status. Though the Habitat Agenda is non-binding, the U.S. publicly committed to stand behind its principles by signing the document. However, many cities across the country conduct “sweeps” that remove people from outdoor encampments without notice or relocation to other housing. These city actions are a form of forced evictions, contrary to international human rights principles.
The United States has continued to shield itself from direct enforcement of international human rights treaties, yet it continues to be a consenting party when they are drafted. Many of the rights found in these treaties are not explicitly dealt with in United States law, making the treaties useful to support domestic legal arguments. Because the criminalization of homelessness violates many rights protected by international law, advocates can use such law as a framework within which to fight criminalization.
The Vienna Convention on the Law of Treaties, May 23, 1969, art. 18(a), 1155 U.N.T.S 331.
For more information about the status of the human right to housing in the U.S. see NLCHP, Homelessness in the United States and the Human Right to Housing (2004); Maria Foscarinis, et al., The Human Right to Housing, Making the Case in U.S. Advocacy, 38 Clearinghouse Review 97 (2004); Maria Foscarinis, Homelessness and Human Rights: Towards an Integrated Strategy, 19 St. Louis U. Public Law Review 317 (2000).
Human Rights Committee, General Comment 27, Freedom of movement (Art.12), U.N. Doc CCPR/C/21/Rev.1/Add.9 (1999).
The United Nations Conference on Human Settlements, Istanbul, June 3-4, 1996, ¶ 61(b), U.N. Doc. A/CONF.165/14 (1996), U.N. Doc. A/CONF.165/14. This comment is made in the context of forced evictions.
HOME | FULL REPORT (pdf) | Acknowledgements | Executive Summary | I. Trends in the Criminalization of Homelessness | II. Criminalization Measures Violate Constitutional Rights | III. Criminalization Measures Violate Human Rights Norms | IV. Constructive Alternatives to Criminalization | V. T op 20 Meanest Cities | VI. Meanest Cities’ Narratives | VII. Other Cities’ Narratives | VIII. CASES: Challenges to Restrictions on Sleeping, Camping, Sitting or Storing Property in Public Place [FEDERAL] [STATE] | Challenges to Anti-Begging, Anti-Soliciting and Anti-Peddling Laws | Challenges to Vagrancy, Loitering and Curfew Laws | Challenges to Restrictions on Feedings | Miscellaneous | IX. Prohibited Conduct Chart | X. APPENDIX:Survey Questions | Sample Know Your Rights Card | Sources for City Narratives |