Ending Criminalization of Homelessness

January 12, 2023

By Ned Resnikoff

In the Tuesday press conference where Gov. Gavin Newsom unveiled his proposal for the 2023-24 state budget, he touched on a key theme addressed in California YIMBY’s report on California’s homelessness crisis (of which I am the author): the need for better statewide coordination and alignment around evidence-based solutions. Those evidence-based solutions all come back to the Housing First model: prioritizing getting people into permanent housing and providing additional services where needed.

In part, better coordination means getting local entities to stop doing things that make homelessness worse, such as blocking badly-needed housing. To that end, the governor’s summary of his 2023-24 budget proposal says the administration will “seek to condition eligibility for any future homeless-related grants and competitive programs … on compliance with state housing law.”

That’s a great idea, and it echoes one of the key recommendations in the report. In the same spirit, I’d like to focus on another way that cities, counties, and even state agencies have made homelessness worse: criminalization and harassment of unhoused people. Our report explained why criminalizing homelessness is harmful and included a recommendation for how the state can combat it; the purpose of this post is to provide additional detail on that recommendation and explain more of the reasoning behind it.

The Problem

Criminalization can best be understood as any policy response that attempts to address homelessness by penalizing people who lack housing. Most commonly, criminalization takes the form of bans on sleeping or storing property in public areas; and encampment “sweeps” that aim to disperse unhoused residents and, intentionally or coincidentally, destroy the property of the people who reside in them.

As California’s homelessness crisis has gotten worse, a growing number of cities have resorted to criminalization. As noted in our report, both Los Angeles and Sacramento have passed major encampment bans in the past year. San Francisco, meanwhile, has spent millions of dollars cracking down on encampments; a report from the Board of Supervisors’ legislative analyst found that in 2015 alone the city had spent more than $20 million “sanctioning homeless individuals for violating quality of life laws.”

Offering unhoused people temporary shelter may sometimes be a necessary palliative for homelessness, but it does nothing to solve homelessness.

State agencies are part of the problem as well. Caltrans has been particularly aggressive when it comes to encampment sweeps, with the recent Wood Street crackdown in Oakland serving as one prominent example.

Encampment sweeps are an absurd response to widespread homelessness. People become unhoused because they cannot access housing; penalizing them doesn’t make that housing any more accessible. In fact, criminalization can actually make housing less accessible; one study of San Francisco’s sweeps found that criminalization “perpetuates homelessness” by “systematically [limiting] homeless people’s access to services, housing, and jobs, while damaging their health, safety, and well-being.” 

That is what I mean when I say that cities are making the problem worse.

Our Recommendation

In recent years, federal courts have come to view some forms of criminalization as not just perverse but actually unconstitutional. The landmark case in this regard was Martin v. Boise from 2018. In Boise, the Ninth Circuit Court of Appeals held that “an ordinance violates the Eighth Amendment insofar as it imposes criminal sanctions against homeless individuals for sleeping outdoors, on public property, when no alternative shelter is available to them.”

I am not a lawyer, and I’m not qualified to evaluate the court’s legal reasoning. But as a policy matter, the court is clearly correct that cities should not penalize people for sleeping in public areas when they have nowhere else to go. For that reason, our report recommended codifying some form of Boise into statute.

I say “some form,” because what we propose is in some ways more stringent than Boise. Here’s why: Boise is generally understood to prevent cities from enforcing anti-camping laws as long as there isn’t “alternative shelter” they can offer to the people targeted for enforcement. But shelter is not housing; offering unhoused people temporary shelter may sometimes be a necessary palliative for homelessness, but it does nothing to solve homelessness.

In fact, shelter can sometimes be a worse deal for unhoused people than sleeping outside. Especially during the COVID-19 pandemic, congregate shelters—where large numbers of people are clustered in the same room—can be vectors for deadly infections. Many shelters also have stringent occupancy rules; they may mandate sobriety, break up families or romantic partners into separate areas, or refuse access to people with pets. While such facilities may meet the minimum requirements to be considered “alternative shelter,” they are hardly a viable alternative for many individuals.

With that in mind, we propose that the “alternative shelter” requirement be replaced with a requirement that cities offer permanent housing—or, at an absolute minimum, transitional housing. In the latter case, that offer of transitional housing would need to be partnered with strict accountability requirements, to make sure that cities are not keeping people in “transitional” facilities indefinitely. Transitional housing should lead to permanent housing within a specified time frame—perhaps within a year of entry into transitional housing.

In other words, under our proposal, California cities would be able to enforce anti-camping laws only if they were able to offer a path to permanent housing for anyone targeted by enforcement. Local entities would need to respond to visible homelessness by focusing on actually ending homelessness.

Why We Aren’t Recommending a Constitutional Right to Shelter

Note that the above recommendation is not a “right to shelter” or “right to housing” proposal. For quite some time, there has been interest among California advocates in creating a formal right to shelter, modeled after New York City’s example. Under this framework, cities would be required to maintain a sufficient number of shelter beds to guarantee accommodations for all its unhoused residents—regardless of whether the city had or planned to enforce an anti-camping ordinance.

Recently, some advocates have proposed a stronger “right to housing” that would require that the state or local entities guarantee permanent housing to everyone (or, in some versions of the proposal, offer shelter only when enough housing isn’t available).

While it sounds like an appealing idea in concept, the track record of such proposals is not promising. As a result, we have serious concerns about whether right to shelter or right to housing will actually help house people experiencing homelessness. New York City’s right to shelter is a cautionary tale, not a role model to emulate.

Based on the example of New York’s right to shelter—which you can read more about here—these are some of the pitfalls that a similar model in California would likely face:

  1. Building up enough shelter capacity to meet the formal “right to shelter” requirement would require a massive financial investment. Inevitably, this would divert critical resources away from long-term solutions to homelessness, such as developing permanent housing.

  2. Because a right to shelter would divert resources away from long-term planning, it is likely that the shelter system would become a vast network of warehouses for homeless people, many of whom may spend years in shelters without any hope of eventually finding a permanent home.

  3. Add to that the cost of shelter maintenance over the long term. In New York City, many shelters are in such disrepair that they pose significant health risks to the people who occupy them. But because the city is required to maximize available beds, it has limited resources to invest into improving conditions at particular shelters.

  4. Lastly, a right to shelter would not prevent criminalization. In fact, in New York, it has become a pretext for criminalization; people who avoid shelters out of concern for their own health or safety are nonetheless targeted for being unsheltered.

While some have proposed a right to housing as a superior alternative to New York’s right to shelter, many of the same issues would apply. Under one recent “right to housing” proposal, a city that had no available permanent housing to offer would be able to meet its obligations by providing temporary shelter. Under that model, it’s unclear what, if anything, would stop a right to housing from becoming a right to shelter in anything but name.

Even if framers made clear that temporary shelter is not housing, they would have a hard time defining the minimum acceptable conditions that satisfy a “right to housing” requirement. What if a city crowds multiple households into the same unit? What about housing that is poorly maintained? Fights about whether substandard units violate the right to housing would likely be settled in the courts, giving judges a great deal of discretion over what the right would look like in practice.

Most importantly, granting people a formal right to housing is not the same thing as providing them with housing. This right would not, on its own, unlock new funding sources or upzone areas where we need to build more. It would leave all of the questions about how to provide this housing unanswered. But if we are going to end homelessness, those are the most urgent questions.

We think the augmented version of the Boise protections that we proposed above dodges these pitfalls. Our proposal would safeguard unhoused people against arbitrary sweeps and push officials to focus on real solutions without replicating the pathologies of New York’s shelter system.

That said, homelessness is a nuanced issue, and our recommendation is a policy proposal, not a fully fleshed-out piece of legislation. In its current form, our proposal doesn’t specify the conditions under which a city would be able to satisfy its obligations by offering transitional housing. Nor does it provide specific accountability metrics to ensure that everyone placed in transitional housing has a pathway to a permanent home. These details and others would require a lot of additional finetuning to make our recommendation workable and ensure its intended outcomes.

Ned Resnikoff is Policy Director at California YIMBY.