When in law school we are treated as though we must conform to the system, rather than asking why the system fails to change.
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For example, I talked to many people who felt that sexual assault âneededâ to be mandatory in Criminal Law classes, despite my suggestion that it would be simple to allow absences for that day or two of lecture, because criminal law is 'on the bar.â Never mind that 'sexual assaultâ was only ever mentioned in passing in bar materials, and the test for determination and defences against it never included in our materials or tested on.
But still, people maintain that it 'mustâ be included as required knowledge. Even for those who never intend to practice in any area remotely related to criminal law.
The Justice Department steps into a case that could have broader implications.
We all need sleep, which is a fact of life but also a legally important point. Last week, the Department of Justice argued as much in a statement of interest it filed in a relatively obscure case in Boise, Idaho, that could impact how cities regulate and punish homelessness.
Boise, like many cities â the number of which has swelled since the recession â has an ordinance banning sleeping or camping in public places. But such laws, the DOJ says, effectively criminalize homelessness itself in situations where people simply have nowhere else to sleep. From the DOJâs filing:
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 activityâi.e., it must occur at some time in some 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.
Such laws, the DOJ argues, violate the 8th amendment protections against cruel and unusual punishment, making them unconstitutional. By weighing in on this case, the DOJâs first foray in two decades into this still-unsettled area of law, the federal government is warning cities far beyond Boise and backing up federal goals to treat homelessness more humanely.
âItâs huge,â says Eric Tars, a senior attorney for the National Law Center on Homelessness & Poverty, which originally filed the lawsuit against Boise, alongside Idaho Legal Aid Services.
According to a NLCHP report last year that surveyed 187 cities between 2011 and 2014, 34 percent had citywide laws banning camping in public. Another 43 percent prohibited sleeping in vehicles, and 53 percent banned sitting or lying down in certain public places. All of these laws criminalize the kind of activities â sitting, resting, sleeping â that are arguably fundamental to human existence.
And theyâve criminalized that behavior in an environment where most cities have far more homeless than shelter beds. In 2014, the federal government estimates, there were about 153,000 unsheltered homeless on the street in the U.S. on any given night.
Laws like these have grown more common as that math has actually grown worse since the recession.
âHomelessness is just becoming more visible in communities, and when homelessness becomes more visible, thereâs more pressure on community leaders to do something about it,â Tars says. âAnd rather than actually examining whatâs the best thing to do about homelessness, the knee-jerk response â as with so many other things in society â is âweâll address this social issue with the criminal justice system.ââ
Itâs also easier, he adds, for elected officials to argue for criminal penalties when the public costs of that policy are much harder to see than the costs of investing in shelters or services for the poor. Ultimately, though, advocates and the federal government have argued, itâs much more expensive to ticket the homeless â with the court, prison and health costs associated with it â than to invest in âhousing-firstâ solutions that have worked in many parts of the country.
Criminal citations also compound the problem of homelessness, making it harder for people to qualify for jobs or housing in the future.
âYou have to check those [criminal] boxes on the application forms,â Tars says. âAnd they donât say âwere you arrested because you were trying to simply survive on the streets?â They say âif you have an arrest record, weâre not going to rent to you.ââ
NLCHPâs goal, Tars says, isnât to protect the rights of people to live on the street, but to prevent and end homelessness. That means adding a lot more shelter beds and housing options in places like Boise â which has three shelters run by two non-profits â so people have options other than the street.
The DOJâs argument is based on the logic in an earlier Ninth Circuit decision, striking down a vagrancy law in Los Angeles, that was ultimately vacated in a settlement. That logic specifically says itâs unconstitutional to punish people for sleeping outside if there arenât enough beds for them to sleep indoors. If there are, the constitutional question would be different, although the moral and policy implications may remain the same.
âHomelessness never left town because somebody gave it a ticket,â Tars says. âThe only way to end homelessness is to make sure everybody has access to affordable, decent housing.â
Big day today. From RBGâs speech in the Rose Garden on the day Clinton introduced her to the country:Â
I have a last thank-you. It is to my mother, Celia Amster Bader, the bravest and strongest person I have known, who was taken from me much too soon. I pray that I may be all that she would have been had she lived in an age when women could aspire and achieve and daughters are cherished as much as sons.
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