This action might not be possible to undo. Are you sure you want to continue?
Thesis My thesis is that the criminalization of homelessness by law is unethical, because it violates the rights and importance of the individual and undermines the idea of being a Christian neighbor. Although the criminalization of homelessness may allow for an improved public image and the removal of undesirables, it is antithetical to Christianity in that it fails to address the true needs of a population. In order to support my thesis, I argue that homeless individuals are valuable citizens and have natural rights to a better quality of life, which cannot be interfered with. I argue this point on the basis of Christian neighboring, displayed in the parable of the Good Samaritan.
II. Sources A. Mitchell, Don. "The Annihilation of Space by Law: The Roots and Implications of Anti-Homeless Laws in the United States." Antipode 29, no. 3 (1997): 303335. The author s thesis boldly addresses the numerous anti-homeless laws across the United States, claiming that by redefining what is acceptable behavior in public space, by in effect annihilating the spaces in which the homeless must live, these laws seek simply to annihilate the homeless people themselves (p. 305). According to Mitchell, the primary strategy of most modern-day vagrancy laws is to outlaw homeless activity in public areas, thereby eliminating space across the metropolitan area. In this model, Mitchell claims, civic authority continues to decrease the living space of the homeless until they essentially have no place left wherein to continue to eke out an existence. Mitchell, a professor at University of Colorado, begins his argument by describing the foundational attitude that serves as the motivating force behind such laws. The demon, according to Mitchell, is the concept of globalization, which emphasizes the acquisition of capital and the maintenance of appearance above all things (p. 304). Globalization also gives community leaders the authority to create laws that eliminate the activities of the homeless and thereby eliminate the freedoms of the homeless.
The author then cites numerous examples of unjust laws targeted specifically at homeless people in order to illustrate his point that the intent [of such laws] is clear: to control behavior and space such that homeless people simply cannot do what they must do in order to survive without breaking laws (p. 307). Mitchell cites numerous laws across varied U.S. municipalities that condemn public behavior common to most homeless people, like panhandling, begging, sleeping in public, lying on the sidewalk, defecating in public, and loitering. While most cities justify such laws by offering a crime prevention standpoint, Mitchell comments that, ironically, anti-homeless legislation is not about crime prevention; more likely it is about crime invention (p. 307).This is the case, according to Mitchell, because antihomeless legislation takes what most homeless people must do to survive and turns it into a crime, severely punishable in many situations. Mitchell even makes the argument that most of these actions are fundamental instincts of survival common to all people, even those who do not live on the streets. The main aspect that seems to make such actions worthy of criminalization is where they are done. Because homeless people simply have no other place where they can carry out such activities, they are forced to carry them out in public, which is deemed not survival, but criminal action. Mitchell then points out the logic that drives the criminalization of homelessness: though these people have nowhere left to go, their homelessness is seen as voluntary. The logic of the oppressor claims that such people fail to take advantage of all the opportunities that society offers, and, therefore, punishment is completely necessary (p. 319). Mitchell also points out another influential point of motivation for laws that discriminate against the homeless: maintenance of the public image. According to Mitchell, the majority of urban redevelopment legislation that alienates the homeless is primarily motivated by the concern that the pretty picture remain paramount (p. 323). In response to a growing number of homeless in the nation s urban centers, many city governments have privatized public space in order to forsake the homeless in favor of the privileged of society.Many of these initiatives place more emphasis on public aesthetics than on the worth of the individual. Thus, as Mitchell concludes, by seeking to eliminate the ugly public spaces of a community, civic authority seeks to eliminate the very people who are forced to live in these spaces; furthermore, this action is completely motivated by a sense of pure fear and misunderstanding.
B. Ellickson, Robert C. "Controlling chronic misconduct in city spaces: Of panhandlers, skid rows, and public-space zoning ." The Yale Law Journal 105, no. 5 (1996): 1165-1194. Ellickson s thesis is that public spaces create opportunities for misuse and nuisance by the destitute, and therefore must be maintained strictly. Ellickson describes public spaces as prime breeding grounds for the chronic public nuisances of the homeless, which undermines the productivity of the space and its
use by the general public. According to the author, the sanctity of public spaces must be maintained by strict force in order to protect the right of the citizen to use such spaces. Ellickson begins his argument by emphasizing that rules of proper street behavior are not an impediment to freedom, but a foundation of it (pg. 1169).According to Ellickson, imposing regulation of public space, specifically in regard to undesirables, allows the majority of citizens the freedom to utilize a public space. Ellickson argues that it only takes a small amount of disorder to create an entire atmosphere of disorder. In his words, A few street peopledisproportionately create an ambience of urban disorder (pg. 1170). Ellickson also demonstrates, through various examples, how small acts of public nuisance build up this negative ambience over time, eventually leading to the disintegration of the public space. Next, in examining possible counterarguments to his policy of strict enforcement, Ellickson discounts the idea of distributive justice in regard to homeless streetpeople.He argues that to favor the poorest may disadvantage the poor, claiming that to allow the poorest of society to live in the streets violates the rights of the slightly better off homeowners in the urban neighborhoods they typically frequent (pg. 1175). Ellickson suggests that the redistribution of wealth is not an issue to be brought into the legal spectrum it is better reserved for tax reform and government policy debates. In his discussion of strict enforcement against chronic public nuisances, Ellickson advocates the informal action of citizens and pedestrians over the formal authority of the police. In Ellickson s view, citizens have the greatest power to eliminate the problem of street people, primarily by individual acts of defense. For example, a pedestrian can simply refuse to provide a beggar with money, which would, in practice, discourage panhandling by making it fruitless (pg. 1177). Ellickson also points out that the typical pedestrian response perpetuates the cycle of chronic nuisance. The average pedestrian is highly unlikely to respond to public nuisance such as panhandling or begging; more than likely, they will simply ignore the offender or fail to condemn their actions. According to Ellickson, if individuals respond with a common attitude of intolerance, then the acts of chronic public nuisance will wane and the public image will improve. If the police are forced to formally enforce correct social behavior, the cycle will only be worsened by the broken window effect. If the public sees that an area has reached a point of irritation necessitating police intervention, then that area s image declines much more rapidly. Finally, Ellickson also takes into account the federal constitutional rights of chronic public misbehavers, pointing out the ambiguities of trying to decide what is constitutional in public policy regarding the homeless. According to Ellickson, many constitutionality arguments stand in the way of enforcing laws regarding homeless people. For example, one common argument is that prohibiting the homeless from 3
begging violates their freedom of speech. Ellickson argues that, according to precedence, the speech of the beggar, typically labeled as commercial, does not carry as much importance as political speech (pg. 1189). The attempt by many homeless advocates to categorize begging as political speech does not hold up in court. Though the speech of a homeless person may have a political message in the eyes of a pedestrian or passerby, the intent is not political. In the author s argument, the intent is very basic on of soliciting money. Ellickson also claims that to trivialize the FirstAmendment in this way risks undermining its legitimacy (pg. 1190).
C.Saelinger, Donald. "Nowhere to Go: The Impacts of City Ordinances Criminalizing Homelessness." Georgetown Journal on Poverty Law & Policy XIII, no. 3 (2006): 545-566. In regard to homeless criminalization laws, the author claims in his thesis that the perceived benefits of the laws do not compensate for their extraordinary tangible and intangible costs (pg. 546). These laws have serious negative consequences for both the homeless and the criminal justice system, as Saelingerargues. Saelinger, who graduated from Columbia University and taught at Georgetown University s Law Center, begins his argument by attempting to define homelessness.Providing a specific definition of homeless (a) allows for an understanding of the large spectrum of homeless situations, and (b) prevents commentators from varying the image of the homeless in order to accomplish their own agenda (pg. 547). In order to address the issue of homelessness, Saelinger breaks the term down into three common definitions: 1. all of those individuals who will experience a spell of being without a home during a given one-year period ; 2. In the eyes of the government, those who lack a fixed, regular and adequate nighttime residence, who live in a shelter intended for the homeless, or who otherwise live in a private place not ordinarily used as a sleeping accommodation for human beings. 1 3. those individuals who sleep regularly in public spaces outside of shelters and in conditions that are not meant for human habitation (pg. 547-548). According to the author, the third definition is most appropriate for discussion of the impact of anti-nuisance laws. These laws specifically target the activities of homeless people (eating, sleeping, defecating, etc.) that occur in areas not meant for habitation. The author then enters into a discussion of modern anti-homeless laws and presents the various legal challenges to such pieces of legislation. Saelinger argues that modern civic laws are designed to reduce the visibility of the homeless. The most
Stewart B. McKinney Homeless Assistance Act, 42 U.S.C. § 11302 (2005). 4
frequently used of these laws fall into three major categories: (1) restrictions on sleeping, sitting, or storing property in public spaces; (2) panhandling and peddling prohibition; and (3) laws against littering, jaywalking, and loitering (pg. 551). When these laws are used in relation to homeless people, they are nearly always discriminatory. However, their supporters commonly offer other rationale for enforcement, such as the maintenance of public safety and the improvement of public image (pg. 553). According to public officials, homeless activity in public is a deterrent to tourists and other visitors to the city. Advocates for the homeless population have brought to the surface several legal problems with anti-nuisance laws. Many advocates have claimed the prohibition of panhandling to be a violation of free speech and, by extension, the First Amendment, but this model has not typically held up well under court scrutiny.Another tactic that has not done well in courts has been a Fourth Amendment claim that uprooting homeless camps violates the right to property. However, many courts hold that, unless cities seek to actively condemn or destroy the property where homeless people sleep, they are not guaranteed a Fourth Amendment right to store personal possessions in public spaces (pg. 556). Another argument, based on the Eighth Amendment, claims that criminalizing homelessness is cruel and unusual punishment, because the homeless, in many cases, cannot help their predicament. However, the Fifth Circuit has ruled that Eighth Amendment claims must be based on post-conviction treatment, not motivation for enforcement2 (pg. 557).According to Saelinger, most of these efforts have been unsuccessful because of the courts refusal to treat the homeless as a suspect class. Saelinger s argument continues by asserting that the criminalization incurs many unreasonable costs to the homeless, the public at large, and the criminal justice system. In his words, criminalization laws make it much more difficult for the homeless to gain social and economic mobility, and thus the laws have the result of extending the period of time that one is homeless (pg. 559). Furthermore, punishment such as fines and jail time only perpetuate the cycle of homelessness, as the fines and bail bonds are often set at unreasonably high levels for someone of little or no income. Also, Saelinger points out that prohibiting panhandling forces homeless individuals to pursue more dangerous crimes, such as drug pushing and prostitution.The author also draws a specific link between criminalizing homelessness and the misallocation of police resources. According to Saelinger, regulating statutes against the homeless prevents police from addressing more socially destructive crimes (pg. 562). Also, when anti-homeless laws are enforced, they tend to merely shift the problem to another part of the city, instead of eradicating it. Therefore, the anti-homeless laws seem to miss their intended goal of making the homeless less visible they simply force them to move to another area. In conclusion, the author points out that the goal of addressing homelessness should be finding ways to directly reduce the number of homeless people who are
Johnson v. City of Dallas, 61 F.3d 442,444 (5th Cir. 1995). 5
forced to live in urban areas, instead of attempting to make them less visible to society. In this futile attempt at removing undesirables, Saelinger concludes, these laws have exacted costs that go beyond any of their marginal benefits (pg. 566). D. Lynch, Philip. "Begging for Change: Homelessness and the Law." Melbourne University Law Review 26 (2002): 690-706. http://heinonline.org.ezproxy.samford.edu/HOL/Page?handle=hein.journals/ mulr26&collection=journals&page=690. 113 In his thesis, Lynch argues that homeless people are disproportionately affected by the application of law without regard to status and are especially subject to the criminalization of behavior that would be lawful if conducted in a private dwelling (pg. 691).He also adds that homeless people are often targeted for law enforcement and often have their rights taken advantage of by discriminating individuals and organizations that sanction this type of law enforcement. Philip Lynch, founder and co-director of Australia s Human Rights Law Resource Centre and Australia's first Homeless Persons' Legal Clinic, begins his argument by describing the different forms of anti-homeless laws. Begging laws are probably the most common example of anti-homeless legislation. According to Lynch, although they are equal on their face, the reality of anti-begging laws is that they impact on society s most marginalized, disadvantaged and vulnerable people (pg. 693). When most homeless people were questioned about begging, they revealed that begging was usually a last resort to satisfy immediate needs. Therefore, as Lynch points out, it is the poor, wretched, and the hungry who beg (pg. 693). Therefore, since begging grows out of economic desperation, it should be regarded as a social and economic issue rather than a crime. Lynch also argues that the cycle of discriminatory legislation will continue as long as homeless individuals are left out of the legislative process. According to the author, community councils should be formed in order to bring together legislators, community individuals, and the homeless poor and bridge the gap between the elite legislators and their more disadvantaged constituents. Lynch also explores the bias of context in the application of anti-nuisance laws. Many homeless behaviors that are labeled as criminal would not be unlawful if conducted in a home.Therefore, anti-homeless laws primarily discriminate on the basis of where conduct takes place, not on its criminal nature.Lynch argues that such concerns for aesthetics and community image, though they may be legitimate, cannot outweigh a homeless person s need to eat, sleep, and live (pg. 698).The author also recognizes that the efforts of many anti-homeless laws are aimed at reducing public nuisance and maintaining the right of all community members to enjoy the use of public areas. However, he argues thatas long as members of our society are homeless, we must harness our annoyance and distress into productive ways to alleviate and defeat the underlying causes of homelessness and poverty, instead of simply removing the homeless from the public view.
Law enforcement officials, in order to target and abuse homeless citizens, often misuse anti-nuisance and social control laws. For example, many homeless citizens report receiving as many as a dozen citations in as short a time as an hour (pg. 701). Homeless people constitute an easy target for law enforcement they are visible, present, and essentially voiceless in society. According to Lynch, this mindset must be eradicated through proper accountability of law enforcement officials. Homeless individuals are not a target to be abused, but a community of citizens in an extremely disadvantaged position made worse by over-aggressive enforcement of discriminatory statutes. Lynch concludes by emphasizing the human rights of homeless individuals. The homeless are not merely a statistic, nor are they a problem to be solved or removed. Rather, they are a leaving, breathing group of real people caught in an extremely rough social position. In regard to this view, the treatment of homeless people should change from one of enforcement and discrimination to empowerment and positive intervention. E. Teir, R. (1993). Maintaining safety and civility in public spaces: A constitutional approach to panhandling. Section I: The Danger to Public Spaces. Louisiana Law Review, 54(2): 285-292. Teir s thesis states that, Annoying solicitations may be beyond complete eradication, but if thesebehaviors can be kept within defined limits, made more discreet, and less intrusive, law-abiding people can regain control over their public spaces, andwalk down the street in peace (pg. 285).According to Teir, in order to reduce crime across the country and improve the general quality of life, public spaces must achieve tranquility. Rob Teir, who graduated from George Washington University and Georgetown University Law Center, where he also taught for two years, begins by describing the current urban abandonment situation in many American city spaces. Across the nation, citizens have been migrating away from urban centers due to the perception of increasing inner-city disorder. In response, many city governments have instituted new ordinances to control the large populations of urban poor people. Most of these laws are aimed at criminalizing begging. According to Teir, many of these laws have received criticism because, since the early victories of the Civil Rights movement in the 1960s, lawsregulating behavior in public have been viewed with extreme suspicion as threatsto the constitutional rights of individuals (pg. 286). Teir even argues that the precedent of the Civil Rights era is unequally and incorrectly applied to the modern plight of the homeless. Such an application of precedent undermines the importance of public security, instead placing too much importance on individual liberty. Teir also claims that regulation of public conduct is an inherent responsibility of government. Some citizens and homeless advocate groups claim that tolerance for diversity should mean complete freedom from government regulation of conduct.In response to such claims, Teir argues that, It would be ironic if the courts permitted the governmentto regulate all sorts of beneficial commercial activity, including street 7
vendors, but declared that begging trading nothing for money is constitutionallyprotected and not subject to control or regulation (pg. 287). In this way, Teir nearly equates begging to other forms of micro-commerce. The author then moves on to describe the threat posed by begging to the life of the community. Teir points out that sidewalks and public places, such as parks, were created for community members to gather freely, integrate, and interact with each other. Public spaces serve an explicit social function in the community context. However, the social benefit of public space can only be realized if such spaces are seen as pleasant and desirable. When the nuisances of chronic begging disrupt public space, citizens begin to move away from urban centers in order to find more pleasurable places to live. Therefore, society becomes even more fragmented. Teir argues that aggressive begging creates an attitude of violence and fear in the individual. Evidence shows that, in many downtown communities, begging has led to even more aggressive measures. Furthermore, begging acts as a contributor to the cycle of disorder that creates opportunity for more violent crimes to enter a neighborhood.In light of this fact, Teir argues that panhandling, must be regulated in order to maintainattractive and secure public spaces (pg. 290). In conclusion, Teir attempts to offer a balanced method of enforcement against beggars in urban settings.The author describes three main ways one can respond to the problem of urban incivility. The first response is one of unbridled acceptance and complete freedom: anyone can do whatever they wish in the public sphere. However, this is unrealistic, as it would exponentially increase the rate of urban decay.The second response is to grant the police full authority in ridding the streets of public nuisance. However, this grants far too much indiscriminant power and places it in the hands of a select few. The third response, which Teir wholeheartedly agrees with, is a middle way that involves carefully tailored legislation that is aimed preciselyat the real problems on our streets and our communities (pg.291). This response effectively preserves the safety and security of the community by clearly defining and eliminating threats to community stability.
III. Conclusion The issue of criminalizing homelessness can be categorized into two primary arguments. The first addresses homelessness from a practical, almost utilitarian standpoint that examines the rights of the general public. The second argument focuses on the worth of the individual, in the context of the larger society. The primary concern is whether or not we should sacrifice the quality of life of the destitute individual in order to protect the rights of the privileged. I argue that the criminalization of homelessness is unethical in a Christian context, because itforsakes the value of the individual and undermines what it means to be a neighbor in Christ. Authors Ellickson and Teir adopt the first view of homelessness law, justifying 8
criminalization by placing the rights of the general public over the rights of a relatively smaller population of homeless individuals. Their argument is utilitarian in the sense that it promotes the value of the whole population over the value of the individual. However, this sense of utilitarianism causes an extreme loss in the importance of the individual. However, as Reinhold Niebuhr points out, Christianity is based upon the worth of the individual. I believe that this individual worth should be reflected in the way we as Christians respond to the homeless. The argument of Ellickson and Teir is also based largely on the concept of achieving a utopian public image. In the concept of homeless criminalization, the homeless are to be removed because they are a threat to the physical appearance of an urban area.In this argument, the priorities seem to be out of line. The authors assume a perfect public image based on human conception, which glorifies capitalism and the pursuit of wealth. However, the Kingdom of God finds beauty in the interactions of love among its members, not in outward appearances. Lynch promotes the claim that citizens should regard the homeless not as a threat, but as a living, breathing group of neighbors. The correct way to approach conflict with homeless populations is to embrace them in the context of community. Because homelessness is a socioeconomic problem and not a crime, community members should address poverty by way of communication and rehabilitation. This is consistent with the idea of being a neighbor in the context of Christian community. Many who argue for the criminalization of homelessness describe a certain compassion fatigue, a phenomenon where citizens becoming increasingly frustrated with the constant call for charity created by the presence of the urban homeless. According to this theory, citizens become more exhausted with handing out money to beggars, until they eventually refuse to be charitable. However, this has not always been the case. As recent as the beginning of the 20th century, society was characterized by a model of community based on the Christian idea of being a neighbor. Communities embraced the homeless and sought to meet their needs, thus lifting them up out of the cycle of poverty. However, as capitalism increased in influential power, the solidarity of the community declined, and the idea of being a neighbor was pushed aside. Ellickson s argument contains a logical fallacy in assuming that vagrancy law will directly benefit the homeless. He claims that allowing the poorest of the poor to operate without restriction or legislation actually disadvantages them by contributing to the cycle of violence. However, his argument of enforcement is no better it traps the homeless in an equally vicious cycle of extremely high court fines and unattainable bail requirements.Thus, his argument is a catch-22; it really doesn t provide any means of empowerment for the homeless. The point reflected in Ellickson s statement is merely a moral equivocation used to assuage greater convictions. Saelinger offers a counterargument to Ellickson s point, claiming that the criminalization of homelessness contains many negative effects for all of the parties involved. Therefore, the criminalization of homelessness is illogical and impractical, as well as unethical.
Mitchell s argument serves to illuminate the other arguments regarding improper motivation in social control. Capitalism tends to drive society towards an obsession with appearance, which, in turn, promotes the removal of undesirable aspects of society, even if it includes people groups or populations.At this point, society completely loses touch with what it means to value the individual and to act as a neighbor in society. Because Christ loved His neighbors regardless of socioeconomic status, our actions should reflect the same mindset. Furthermore, because Christianity stresses the importance of the individual, we cannot be okay with de-personalizing entire populations for the sake of removing them from ourlandscapes. Therefore, the criminalization of homelessness is unethical.
This action might not be possible to undo. Are you sure you want to continue?
We've moved you to where you read on your other device.
Get the full title to continue listening from where you left off, or restart the preview.