Countering Criminalization: Constitutional Challenges Under the Eighth Amendment

This is the part five of our Countering Criminalization blog series, examining Constitutional Challenges and Constructive Alternatives to the criminalization of homelessness.

With national and local shortages of affordable housing and shelter beds, people experiencing homelessness are frequently left with no option but to perform their basic, life sustaining activities – such as eating, resting, and sleeping – in public. Despite this, local governments continue to pass and enforce laws that restrict these behaviors. Homeless people are routinely cited and arrested for these acts, and the resulting fines and convictions make it even more difficult to secure long-term employment and housing.

Laws that criminalize homelessness by turning basic, life-sustaining functions into criminal acts unconstitutionally violate the Eighth Amendment, which prohibits cruel and unusual punishment. Federal courts found that local laws in California and Florida were cruel and unusual punishment, for prosecuting and convicting homeless individuals for necessary actions – such as sleeping – when there is not enough shelter space, and they have no alternatives.

The Law Center’s 2013 report Cruel, Inhuman, and Degrading notes that without housing or shelter, “many homeless people must undertake self-made solutions, such as forming alterative communities like tent cities, creating self-designed sanitation processes, or using public space to perform basic bodily functions when there is nowhere else to go.” However, they are “routinely penalized for designing self-help solutions to ensure their basic survival. Indeed, the criminal penalties associated with the activities of homelessness deepen vulnerabilities, making it more difficult for homeless people to find adequate housing or economic opportunity.”

Criminalizing homelessness does nothing to solve the problem. It is expensive, ineffective, and cruel. And when laws punish people for their basic life functions, they are cruel and unusual punishment.

Stay tuned for our next post in the Countering Criminalization series, when we will continue looking at Constitutional Challenges to the criminalization of homelessness.

— Cheryl Cortemeglia, Volunteer Staff Attorney


Photo by Flickr user steev (CC BY-NC-SA 2.0)

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One Response to Countering Criminalization: Constitutional Challenges Under the Eighth Amendment

  1. Gary susich says:

    The preamble of the U.S Constitution mentions the general welfare. To me that means everyone in America has the expected right to shelter and food.

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