Status Crime in the 21st Century: The Criminalization of Homelessness


After the Civil Rights Era of the 1960s and 1970s, American legal norms shifted from a law of criminalized status, such as Jim Crow, to conduct crime law. Conduct crime law intends to only penalize persons “for their specific, voluntary actions.” With this transformation, legal experts and pundits could declare that American law now ‘fulfilled’ promises of “complete liberalism” and universal human right of due process. [1] However, after the the 1970s and 1980s rollback of Civil Rights reform, critical legal theorists found that new conduct regulations continued to target specific marginalized statuses. [2] These new laws claim to criminalize voluntary conduct, but in reality they criminalize conduct that is inseparable from stigmatized statuses. Therefore, the people who must live by this criminalized conduct also experience a criminalization of their status. [3] One such example of conduct/status conflation are the various conduct regulations of homelessness.

Many scholars have employed the “conduct/status conflation” framework to analyze how anti-homeless conduct legislation works to target and to disempower homelessness status. For example, Leonard C. Feldman claims the “status of homelessness” became “constitutionally regulable” by translating homeless status into homelessness’ “component acts,” such as public sleeping or public sidewalk sitting. [4] However, homeless status demands the exercise of component acts to maintain individual agency and autonomy. Therefore, when law targets and regulates these component acts and their associated status, it reduces the ability of homeless individuals to act as full persons in American society.

Courts began to address the constitutionality of anti-homeless legislation with Papachristou v. City of Jacksonville (1972) and Pottinger v. City of Miami (1992). Moreover, both cases demonstrate this conduct/status conflation and its relation to constitutionality in anti-homeless legislation. The first case, Papachristou v. City of Jacksonville revolutionized anti-homeless legislation by striking down vagrancy laws, which disproportionately targeted the status of homelessness. Vagrancy laws have their own disturbing and discriminatory history. Although first emerging in England to force the ‘idle’ to work in the burgeoning capitalist economy, they developed in the United States as one of the earliest forms of Jim Crow laws. As Jim Crow laws, vagrancy statutes targeted and arrested unemployed African-Americans, often to force them into convict labor. The mid-20th century American vagrancy laws which the Supreme Court addressed in Papachristou v. City of Jacksonville followed in discriminatory tradition by targeting and criminalizing non-normative, homeless, and ‘idle’ bodies into regular participants in American economy and workforce. [5]

Because of vagrancy law’s history with discrimination and the criminalization of status, the Court found Jacksonville’s vagrancy laws unconstitutional, specifically in violation due process. The Jacksonville ordinance targeted homeless individuals by criminalizing an incredible list of non-normative conducts, including “rogues and vagabonds, or dissolute persons who go about begging… common night walkers… people wandering or strolling around from place to place without any lawful purpose or object.” [6] The Court’s opinion problematizes the issues of targeting these non-normative status, demonstrating that such laws “encourage arbitrary and erratic arrests and convictions,” and criminalize ‘normal’ activities by modern standards to therefore violate the constitutional right to due process. [7] Although the Court struck down this status criminalization of “poor people, nonconformists, dissenters, idlers,” the court also centered its rule on the “archaic language” of vagrancy law, rather than the unconstitutionality of status criminalization. [8] With this ruling, the Court maintains the legal illusion that status law has become a disposed tradition of American law and that modern law has ushered in new era of freedom and due process.

However, this myth quickly dissipated with the subsequent rise of anti-homeless ‘conduct’ legislation, like anti-public sleeping or anti-sidewalk sitting ordinances found in Boise and San Francisco. [9] Federal courts addressed the modern form of status/conduct conflation demonstrated in Pottinger v. City of Miami (1992). In the ruling, the United States District Court for the Southern District of Florida, affirms that Miami’s anti-homeless law targets status rather than conduct. The ruling struck down Miami’s anti-homeless legislation based on a violation of of cruel and unusual punishment as protected in the Eighth Amendment.

Although Pottinger v. City of Miami, may seem like a ‘win’ in its ruling that the City of Miami targeted homeless status instead of conduct, the Court actually legally formulated an argument which interpreted homeless status as ‘lesser.’ When the Court assumes “people rarely choose to be homeless,” they construe homelessness as an involuntary, absolutely undesired and helpless condition. [10] By assuming and constructing homelessness as involuntary and helpless and ruling that anti-homeless legislation is unconstitutional due to this legal basis, the Court removed the agency and autonomy of homeless individuals.

Despite structural aspects of homelessness are involuntary because it arises from a stratifying capitalist economic system, involuntary legal problematizations of homelessness contribute to the unmaking of individual agency of the homeless people. The relegating of involuntary status as done by the Court in Pottinger reduces homeless individuals to a legal category of ‘bare life,’ or the idea that law is only responsible for not letting people die. [11] The legal regulation of the ‘bare life’ occurs when law targets certain persons as less than agentic persons, relegating them to a human status defined by biological necessity and forming law’s sole responsibility in ‘making live,’ rather than guaranteeing the right to personal autonomy. [12] The Court demonstrated their desire for such ‘making live’ in demanding that the city must provide housing to shelter Miami’s homeless residents, or else they cannot criminalize public sleeping. This argument completely disregards any opinion of homeless individuals on whether may or may not want to stay in dangerous, overcrowded and poorly maintained shelters because it assumes that once shelters are available, the law can criminalize public-sleeping and therefore, so can the decision to sleep outside and ‘be homeless.’ [13] In its regulation of status, the notion of involuntary homelessness aids in criminalization of the homelessness status of by reducing it to bare life and a status of choicelessness. By law’s designation of homelessness status as involuntary, it limits the autonomy of homeless individuals through the framework of criminalizing a status that law assumes to be inconceivably chosen.

In conclusion, the status law remains an integral part of the American legal system, including in anti-homeless legislation. Since law remains to regulate the existence of homeless people, status law prevails by merely nominally managing and targeting conduct deemed ‘involuntary.’ Legal solutions to this municipal status criminalization would have to enable law’s empowering of the agency and individuality of homeless individuals, while simultaneously recognizing that a stratified and exploitative economic system often, but not always, causes the conditions for unhoused people. To navigate this fine line between empowerment but not romanticization, and contextualization without depersonalization, law must re-imagine and listen to the voices of homeless individuals with understanding and without imposing a normative or assimilationist narrative to truly eliminate conduct-based status criminalization.

Sources:

[1] Feldman, Leonard C. Citizens without Shelter: Homelessness, Democracy, and Political Exclusion. Ithaca: Cornell University Press, 2004, 49.

[2] Cacho, Lisa Marie. Social Death: Racialized Rightlessness and the Criminalization of the Unprotected. New York: New York University Press, 2012, 43.

[3] Ibid, 5-6.

[4] Feldman, Citizens without Shelter: Homelessness, Democracy, and Political Exclusion, 50.

[5] Ibid, 35-36, 40.

[6] Papachristou v. City of Jacksonville, 405 US 156 (1972), 156-157.

[7] Ibid, 162.

[8] Ibid, 156.

[9] Egelko, Bob and Kevin Fagan, “Homelessness Ruling: Sleeping on Streets Can't Be a Crime When No Shelters Are Available.” Governing. September 5, 2018. https://www.governing.com/topics/public-justice-safety/tns-homelessness-cities-cannot-prosecute-when-no-shelters-available.html.

[10] Pottinger v. City of Miami, 810 F. Supp 1551 (S.D. Fla 1992), http://osaka.law.miami.edu/~schnably/pottinger/pottinger.html.

[11] Foucault, Michel. The birth of biopolitics: lectures at the Col-lège de France, 1978-1979. New York: Picador, 2008.

[12] Feldman, Citizens without Shelter: Homelessness, Democracy, and Political Exclusion, 70.