Civilly Criminalizing Homelessness

Abstract

The criminalization of homelessness refers to the enactment and enforcement of laws and policies that punish un-sheltered people for surviving in public space, even when those individuals have no reasonable alternative. The constitutional and civil rights issues stemming from criminally charging un-sheltered people for public survival are controversial but clear. But cities often skirt legal challenges to criminalization by avoiding criminal charges and pursuing other means to punish homelessness. Many cities “civilly criminalize homelessness” through civil enforcement, which extends from infractions or fines to “invisible persecution,” such as the persistent policing and surveilling of un-sheltered people. So while courts, legislatures, and advocates commonly focus on criminal charges, these punishments are just the tip of the criminalization iceberg: civil enforcement is arguably more extensive, pervasive, and damaging; however, courts and legislatures do not protect people experiencing homelessness from civil criminalization. This Article argues for greater attention to the devastating impact of civil punishments, drawing from other critiques that expose how civil tools punish poor and vulnerable people. It also examines how punishment operates outside of both criminal charges and civil sanctions, severely penalizing un-sheltered people and requiring reform.

Keywords: civil law, civil debt, punishment, constitutional law, homeless, homelessness, criminalization, discrimination, bias