Cities throughout the country respond to homelessness with laws that persecute people for surviving in public space, even when unsheltered people lack a reasonable alternative. This widespread practice—the criminalization of homelessness—processes vulnerable people through the criminal justice system with damaging results. But recently, from the epicenter of the homelessness crisis along the West Coast, the Ninth Circuit extended the Eighth Amendment’s prohibition against cruel and unusual punishment to cities prosecuting unsheltered people for sleeping or camping in public space in Martin v. Boise. Boise, supported by amici from scores of other Western cities and counties, filed a petition for a writ of certiorari with the U.S. Supreme Court, which the Court denied without comment. A landmark ruling, Martin might push cities to stop criminalizing homelessness and instead address its underlying causes. But rather than decarcerating homelessness or facilitating solutions, Martin instead may be leading states and cities to find new ways to hide unsheltered people: a sort of transcarceration movement from openly punitive campaigns that incarcerate unsheltered people to alluring campaigns that confine unsheltered people through means such as involuntary commitment into psychiatric facilities or compulsory segregation into authorized zones or camps. These developments do not alleviate homelessness; they repackage its criminalization. Indeed, post-Martin efforts reframe displacement, forced confinement, and control over unsheltered people not as criminalization, but as compassion. While these efforts might technically comply with Martin, they threaten to undermine the very fundamental constitutional rights it sought to protect and do nothing to improve homelessness. Instead, cities should move to decarcerate homelessness by pursuing more humane and effective alternatives that not only comply with Martin but also promise to stem the crisis.
Hiding Homelessness: The Transcarceration of Homelessness, 109 Cal. L. Rev. 559