Running head: HOUSING NOT HANDCUFFS 1

Housing not Handcuffs: an Analysis of Anti-Vagrancy laws

Ana K. Beasley

First Colonial High School

HOUSING NOT HANDCUFFS 2

Abstract

This paper will be explaining and analyzing anti-vagrancy laws and the reasons behind

their existence in America today. The author begins by giving a description of the three different

types of ordinances typically used to criminalize the homeless: panhandling laws, food sharing

laws, and laws prohibiting sleeping and camping in public. Each section also discusses one

important case for each ordinance type. The author then gives a brief history of anti vagrancy

and exclusionary laws and their touches on their origins. Following this is a section that connects

the history to the mentality and treatment towards homeless individuals in today’s society. The

author then discusses cities within the United States and the solutions to homelessness in other

countries. The paper ends with a reflection and insight on what America’s next step should be to

try and solve this crisis.

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Housing not Handcuffs: an Analysis of Anti-Vagrancy Laws

With about two million people experiencing homelessness at some point in a given year,

it has become a national crisis in America. Instead of addressing the root causes of homelessness,

cities across the nation have adopted legislation to make it harder for homeless and low income

individuals to survive. This includes banning panhandling, food sharing, camping in public, and

more in attempt to punish the homeless for carrying out daily necessary activities. This absurd

approach to the issue which is essentially outlawing the way individuals without housing survive,

offers no real solution and normalizes hatred. The enforcement of this legislation that

incriminates homeless individuals creates further barriers for them to receive housing and

perpetuates a negative stigma about them by undermining the challenges of homelessness.

Ordinances that Criminalize Homelessness

Panhandling Laws

Even though the Supreme Court considers bans or restrictions on begging a violation of

the First Amendment, many cities are still enforcing laws that do so. As of January 2018, the ban

on panhandling in Virginia Beach was lifted; however, the city is late to repeal the ordinances

allowing it (Skelton, 2018). In 2015 the decision of ​Reed et al. v. Town of Gilbert (​ 2015) has set

a general rule when regulating speech is based on its contents. It surprisingly was not a case

involving panhandling, but it was revolutionary to the movement against anti-vagrancy laws.

Although the case of ​Reed et al. v. Town of Gilbert (​ 2015) was about an ordinance

banning a church from putting up signs about their services, it marked a victory for civil liberty

groups and other proponents who advocate for the rights of homeless individuals. This case set a

precedent for regulating free speech that requires any ordinance attempting to do so to serve
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some interest of the government. The ordinance is unconstitutional if the purpose of it can be

accomplished by any other means other than a content-based restriction on speech (Lauriello,

n.d.). This has strengthened arguments saying that panhandling bans are a violation of the First

Amendment and discriminatory towards the homeless as they usually are passed due to a

business complaining that beggars scare their customers away which is not a valid reason.

Allowing people afraid of addressing poverty and homelessness to feel comfortable does

not qualify as a compelling government interest. City councils continue to masquerade blatant

attacks at the homeless community as being another way to protect people from harm. There are

laws in place to protect people from violence, threats, and disorderly conduct; however, cities

continue to justify panhandling bans as a way to further help people feel safe. Out of 128 cities in

the U.S. approximately 70 percent still have laws that ban begging in specified public places,

usually including places where businesses are prevalent such as commercial and tourist districts

(Wogan, 2017).

Food Sharing Laws

There are many myths and motivations that have been circulating regarding homelessness

and food sharing. These myths lead to conceptions generally agreed upon by society which

inhibit laws that restrict or prohibit food sharing to be passed. Narrow minded perspectives have

painted the picture that sharing food with the homeless enables them to remain homeless. This

perspective and other myths have led to 31 cities nationwide taking steps to reduce or ban the act

of food sharing (“Food Sharing Report”, 2014, pg. 4).

Since 2013, more and more cities have turned to banning food sharing, hurting food

insecure and homeless individuals. In spite discriminatory legislation, brave people have been
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taking a stand and are continuing to share with those in need. Back in January of this year, 12

individuals volunteering in El Cajon, California, were charged with misdemeanors for serving

food to the homeless in the park (Guarnieri, 2018). Similar occurrences have been happening

across the country, especially with the organization Food not Bombs, an anti-war organization

that serves free vegetarian and vegan meals and promotes peace. In August of this year, they

played a huge role in making strides towards getting rid of food sharing bans in the United

States.

In 2015 Food not Bombs sued the city of Fort Lauderdale, Florida, after it enacted an

ordinance that banned food sharing in public unless organizations follow a lengthy list of

requirements. The organization claimed that the ordinance and park rules were unconstitutionally

vague, and a violation of the First Amendment. Federal court dismissed their case because it was

supposedly not in the sphere of the First Amendment, and there was no particularized message.

The case was then appealed to the 11th Circuit court, and conversely, it ruled in favor of Food

not Bombs basing the ruling on the circumstances of an event that make it expressive conduct

(Sibilla, 2018)​. Circuit Judge Adalberto Jordan remarked “​walking or sitting down aren’t usually

considered ‘expressive conduct,’ but they certainly convey a message in the context of a picket

line, a parade, or a sit-in” (Sibilla, 2018). Similarly Food not Bombs actions were not simply just

a huge picnic in the park but rather a means of conveying the message of the organization. With

food sharing legally becoming a form of human expression, the hope is that it will provoke cities

to consider and examine constructive solutions to help food insecure and the homelessness rather

than place more restrictions that hinder them from receiving help.
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Sleeping and Camping in Public Laws

A major fallacy in our legal system today is that homeless individuals are being punished

for sleeping in the streets when there is a lack of affordable housing and not enough shelter space

to accommodate them. Many local ordinances ban sleeping and camping in public. Law

enforcement will go out of their way to find and punish these people having officers conduct

sweeps of encampments and other areas the homeless may congregate to drive them out. This

can result in a homeless individual being arrested and charged with a misdemeanor and their

personal property being destroyed “including private documents and medications” (Hodge, J. G.,

DiPietro, B., & Horton-Newell, A. E., 2017). According to the Western Regional Advocacy

Project of 2013, 74% of homeless people do not know a place where it is safe and legal for them

to sleep ​(​No Safe​, 2014, ​p. 16​)​. With nowhere to go at the end of the day, the homeless are left to

risk being stopped by the police and their belongings being damaged.

In 2009, six homeless individuals in Boise, Idaho, who had been convicted under laws

prohibiting them to sleep or camp in public sued the city. On September 4th of 2018, after many

years of legal discourse, the Ninth Circuit Court of Appeals filed an opinion stating that the laws

were unconstitutional given that there is not enough shelter space ​(​Bell v. City of Boise​, 2018).

Similarly, the Department of Justice filed a statement of interest back in 2015 that stated:

When adequate shelter space exists, individuals have a choice about whether or not to

sleep in public. However, when adequate shelter space does not exist, there is no

meaningful distinction between the status of being homeless and the conduct of sleeping

in public. Sleeping is a life-sustaining activity — i.e., it must occur at some time in some
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place. If a person literally has nowhere else to go, then enforcement of the anti-camping

ordinance against that person criminalizes her for being homeless. (p. 12)

After this major warning from the Federal Government and court decision, it is anticipated that

cities will get rid of bans and start helping the homeless through more constructive means.

Why has the Homeless Community been Targeted

History. ​A report by the Seattle University School of Law found that ordinances that

punish the homeless can be traced back to the beginnings of our country. In the original thirteen

colonies of the United States, many of the laws were based off of those made by English

Parliament. This includes anti-vagrancy laws. The State of Labourers written by English

Parliament in the 14th century under King Edward III greatly influenced the colonies to enforce

laws that punish vagrants. Vagrants during this time were considered to be people who travelled

from one city to the next and did not have money or a job. Laws during this time were tailored to

purposefully discriminate against these people and empower local authorities to push vagrants

out to avoid economic instability. ​This type of discriminatory legislation persists throughout

history: from Jim Crows laws that suppressed Black Americans, the prohibition of migrant

workers moving from plain states to Washington or California, and the punishment of disabled

Americans for appearing in public places in the United States (Ortiz & Dick, 2015).

The report also found that before the Civil Rights Movement there were anti-vagrancy

laws that specifically were targeted at “vagrants” or those “neglected by their employment” but

were eventually struck down by courts for violating the Eighth and Fourteenth Amendments

along with other exclusion laws (Ortiz & Dick, 2015). Cities tried getting around this by using

different, more ambiguous terms that still gave them to ability to remove unwanted people.
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These laws, however, were struck down again after the conclusion of the Civil Rights Movement

for giving officers too much leeway in determining who actually was violating the laws.

Following this cities then came to use the terms “panhandling,” “food sharing,” and “camping”

to avoid being deemed unconstitutional due to ambiguity. The ordinances moved away from

describing the appearance of the person but the conduct and behaviour in violation instead.

Although this new statutory language does restrict laws from being used as a broad tool for law

enforcement, it still allows them to evade due process (Ortiz & Dick, 2015).

Patterns and mentalities stemming from society’s response. ​This section will explore

why homeless people are treated so poorly in America. A question raised is why are people with

the least social power treated as if they are a threat to society? Professor Amster, co-director of

the program on Justice and Peace from the ​University of Georgetown, presents the following

approach: ​society sees homeless individuals as a part of “deviant subculture” due to mainstream

media depicting them that way. This places them under stereotypes of danger, disease, and

criminal behavior. The homeless and others who fall under this construct are ​seen “as inferior,

inhuman, unsympathetic, deserving of their fate, and perhaps even requiring punitive measures”

(Amster, 2003). In summary, society believes these people are subhuman individuals who

deserve to be treated poorly and don’t deserve compassion (Amster, 2003).

One common justification for the criminalization of homelessness is the Broken

Windows Theory. In short, Broken Windows is the concept that every issue that is left alone in a

given environment will affect people’s attitude toward that environment. The theory has been

used as metaphor to describe disorder within a community and links incivility within a

community to escalating to serious crimes (Mckee, 2013). This kind of mindset is what causes
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law enforcement to prioritize low-level, quality of life crimes causing certain groups to be

targeted such as the homeless (R. Amster, J.D., Ph.D., personal communication, October 25,

2018).

The New York Police Department (NYPD) has been notorious for being huge proponents

of the Broken Windows theory. As recent as 2016 the NYPD have “created a new category to

define instances where two or more individuals, assumed to be homeless, congregate in public”

(Lewis, 2016). An internal memo from the NYPD was obtained by the organization Picture the

Homeless. This memo termed these places as “hot spots,” they can include parks and other

public spaces where police officers were encouraged to intervene. The memo was sent out to all

commands January 9th, 2016 with the subject line: Re: Homeless Encampment Procedure. If any

race, age, gender was substituted with the word homeless this would instantly be considered

outright discrimination. The end goal of this kind of mandate is to harass and humiliate the

homeless sending the message to disappear out of public site (Lewis, 2016).

In our world there was at some point a major shift in the way we viewed homeless

individuals. In Henry Miller’s book ​On the Fringe: the Dispossessed in America (​ 1991), he

observed how in history the homeless beggar was many times a symbol of divinity and faith.

However, once the “domains of private property” were established in 16th century England, the

vagrant took on a new image (Amster, 2003). As rural turned to urban and a capitalistic

economic system became more prevalent, vagrancy became a threat. Poverty in today’s society

is seen as an explanation to deviant or criminal behaviour. However, those who are impoverished

but have a place to stay are not under the same scrutiny as the homeless because they are out of

sight of the public (Amster, 2003).

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Comparison of Different States and Countries

Among States in the US. ​This section will compare some cities in the United States,

their criminalization measures or their programs and services in place to address root causes.

There is not exactly any specific criteria to determine which cities treat homeless individuals the

best, but the way they use their money and resources can be measured and used to show

generally whether the city takes the route of criminalization or aiding the homeless. Three

criminalizing cities will be covered first and then contrasted with cities who use constructive

solutions.

According to a 2009 report done by The National Coalition on Homelessness and Poverty

and The National Coalition for the homeless said Los Angeles, California was spending 6

million a year to hire more police officers to curtail crime in an Area known as Skid Row: “the

ugly epicenter of staggering homelessness” (“​Los Angeles' homelessness crisis is a national

disgrace”, 2018)​. Meanwhile, the city was only spending 5.7 million on efforts to help the

homeless. Over a time frame of 11 months, 24 people were arrested 201 times costing the city an

estimated $3.6 million for the use of police, the jail systems, the courts, and prosecutors and

public defenders. These funds could have been used to provide 225 homeless individuals with

supportive housing ​(​Homes Not Handcuffs​, 2009, p.11). This kind of funding is crucial in recent

times as just over the past 6 years the rent for a studio apartment has been raised on average by

92 percent. Even people with stable jobs can be left out on the streets with today’s trends (​“​Los

Angeles' homelessness crisis is a national disgrace”, 2018)​.

The next top criminalizing city is St. Petersburg, Florida. The city has passed six new

ordinances to restrict the lives of the homeless since 2007 (​Homes Not Handcuffs​, 2009, p.11).
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This includes banning sleeping and camping in many areas, prohibiting storage of personal

belongings in public, and outlawing panhandling in almost all of downtown. In the county of

Pinellas-Pasco, the public defender refused to represent any homeless individual who violated

these codes in protest of the ridiculous number of arrests of the indigent. The majority of

individuals in the Pinellas-Pasco jail for violating municipal code are homeless individuals

according to numbers drawn by the public defender’s office (​Homes Not Handcuffs,​ 2009, p.11).

The third city considered to be one of the most hostile towards the homeless is Orlando,

Florida. The city has strict food sharing laws. Any groups sharing food must not serve more than

25 people at a time. A member from the organization Food not Bombs, a group that frequently

shares food with the homeless and food insecure, was arrested facing a 60 day sentence, a $500

fine or both. The Eleventh Circuit Court found the ordinance to be unconstitutional, but the city

appealed (​Homes Not Handcuffs​, 2009; Jacobson, 2011).

There are many cities that have taken the route illustrated above, but the following cities

have taken up constructive solutions. In Daytona Beach, Florida service providers, business

groups, and the city collaborated and formed the Homeless Assistance Program. The Homeless

Assistance Program provides the homeless with jobs and housing. Their is also a shelter

provided by the program that treats guests to three meals a day and has rooms for congregation

and social gatherings. Everyone at the shelter has access to services provided by the Homeless

Assistance Program including up to 3 months of shelter for homeless families to get back on

their feet, employment and daycare opportunities, classes on finance and family dynamics and

more ("The Homeless," 2018; ​Homes Not Handcuffs​, 2009).

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Another city using constructive solutions is Cleveland, Ohio, which has found a

resolution to tensions between law enforcement and those experiencing homelessness and other

difficulties food sharing. The city contracted with ​Northeast Ohio Coalition for the Homeless

(NEOCH) to help coordinate all food sharing groups including Food Not Bombs, religious

congregations, and any individuals not associated with a particular organization. They were in

turn able to improve services and resolve issues involving space constraints. Since this initiative

was taken, professional outreach teams have been working closely with food providers to serve

food in a strategic manner ​(​Feeding Intolerance,​ n.d.; ​Homes Not Handcuffs​, 2009).

The final city Portland, Oregon has implemented a plan called named “A Key Not a

Card” as part of a 10 year plan to end homelessness. Outreach workers from five different

services can immediately offer people experiencing homelessness housing for up to two years

while they get back on their feet. Since the initiation of the program in 2005 through 2009, 936

individuals were moved off the streets and into housing (Skinner, 2014; ​Homes Not Handcuffs,​

2009).

Different countries approaches. ​This section will cover examples of four different

countries methods to lowering homeless rates including Denmark, Singapore, Canada, and

Japan. Each of these countries have done a significantly good job of tackling the core issues of

homelessness by actively working to better people experiencing homelessness rather than

punishing them. Nonetheless, every country is much different from our own, so there is no

saying that what works for one may work for the United States but each of these countries set a

good example on how this nation should start approaching the crisis.
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Denmark for instance, has adopted a housing first policy along with trying more

experimental solutions. The housing first policy resolves one of the biggest causes of

homelessness and is keeping people, especially youth, off the streets. The country is very

concerned with improving the lives of the homeless and prioritizes policies and funding to help

homeless individuals. Utah actually has mimicked the strategies of Denmark and had great

success causing other communities in the U.S. to want to implement it in their own cities

(Salhani, 2016). As for more experimental solutions, the third largest city of Denmark, Odense,

uses GPS trackers on homeless volunteers in order to track their whereabouts. They then use the

information to virtually change the infrastructure of the city to make it a better place for

homeless individuals. The city strategically adds benches, coffee rooms, and services where they

are most accessible to those experiencing homelessness (O’Sullivan, 2014). Along with

legislation and government programs a part of a cemetery in Copenhagen is being set aside for

the homeless residents in the city. Even seemingly insignificant improvements like this give the

homeless dignity and improve their quality of life ("Homeless to Get Their," 2013, p.1).

The next country, Singapore, is described as having “virtually no homelessness”

(Richardson & Ong Ling Lee, 2012). The country sets high expectations with its nearly perfect

housing program that has adapted over time to fit the needs of the country today. Statistics show

that approximately 80 percent of Singaporeans live in government built homes while 90 percent

own their own homes (Salhani, 2016). Housing residences are mixed income, provide high

quality public transportation, excellent education, and centers of socialization and entertainment.

The cities are an epicenter of sustainable and inclusive bringing together all classes and

ethnicities (Jha, 2018). If the United States tried to replicate this, it might have trouble, however
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starting with providing some affordable housing and supportive services to just half a million

homeless individuals could save more money than doing nothing (Salhani, 2016).

Canada is in a similar situation to the United States with the growing population of

homelessness in Canada becoming a national crisis. However, since 2009 the country has been

working on making a huge step in the right direction. As of 2015 Medicine Hat, Alberta is the

first city in the country to end chronic homelessness. The city does not allow anyone to go more

than 10 days on the streets or in an emergency shelter. Study after study has shown that

government provided housing is financially better than criminalizing. The city proved exactly

this with almost all of its residents living in permanent housing by the end of 2015 and by the

end of 2017 having declared the end of homelessness. (Couch, 2015; Salhani, 2016) This

strategy has reduced the amount of police interactions and emergency room visits as well as

saving the city approximately $80,000 per person housed. (CBC Radio, 2014)

Japan has had a trend of decreasing homelessness since 2003, as records have shown. As

of January of this year the entire homeless population of the country decreased 557 from the

previous year, dipping below 5,000 (Kyodo News, 2018). In Tokyo and surrounding areas alone

there is only approximately 700 individuals who are homeless with the population there being

over 36 million. For comparison, Washington D.C. has more 7,000 homeless individuals but the

total population is only 672,000 (Salhani, 2016). Metropolitan government officials accredit the

astoundingly low homeless population to support offered by the city including temporary

housing, employment advice, as well as people being able to turn to social welfare for assistance

(Hongo, 2014). The city’s primary method is offering counseling and the resources necessary to

help people become self sufficient.

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The Best Solution

Currently, our country’s methods of fixing our nation’s growing homeless crisis is simply

not working. Most of the United States is focused on punishing, shunning, and excluding the

homeless rather than actively trying to help them. The numbers have shown though, that these

methods simply do not work and are more costly than the alternative. Something that needs to be

addressed when coming up with a solution for America is that there is no single remedy that will

end all of homelessness and the issues that enable it. There are a spectrum of solutions that exist

and although promising, none are guaranteed to solve everything or work for every environment.

As demonstrated by countries, cities, and communities that have been successful in decreasing

the amount of people living on the streets, there are many different ways to approach the

problem.

The first place to start would be trying to shift Americans’ attitudes about homeless

individuals and to end the false stigmas. One major roadblock in helping the homeless is the way

they are seen by their fellow Americans. Despite what the media and stereotypes have portrayed,

almost anyone can be put in the position of having nowhere to sleep. In fact, an astounding

number of americans are at high risk to be living below the poverty line. The corporation for

Enterprise and development found that 43 percent of households have no liquid assets. “If these

households face a layoff, a medical emergency or other significant financial issue, they could fall

below the poverty line within three months” (Goldberg, 2015). This just goes to show that many

of the homeless are often just victims of bad luck or a string of bad events that took place in their

life. With about 44 percent of individuals who are without shelter being employed, it is no secret
HOUSING NOT HANDCUFFS 16

that there is something fundamentally wrong with the system (National Coalition for the

Homeless, 2009).

Some astounding examples of addressing this issue can be found within this country. For

instance, in Houston, Texas, law enforcement has worked to break down barriers between

themselves and homeless individuals. Starting in January of 2011, a pilot program known as the

Homeless Outreach Team (HOT) was started. The team comprised of a sergeant, four police

officers, and three mental health professionals works with organizations and programs to help the

chronically homeless. After HOT’s initial success it was made a permanent addition to the

Houston police department. The team’s main goal is to house homeless individuals but the effect

they have on the community is much bigger (Homeless outreach team, 2014). The example they

set, along with the other cities and nations mentioned above, is that connecting the homeless with

resources in their community can do so much more than just cycling them through the criminal

justice system.
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