The relationship between homelessness and the criminal justice system represents one of the most problematic intersections of systems affecting people experiencing housing instability. This relationship is bidirectional and cyclical: involvement with the criminal justice system can lead to homelessness, while homelessness increases the likelihood of criminal justice involvement. Understanding this cycle is essential for developing more effective approaches to both homelessness and public safety.
The Criminalization of Homelessness
In many communities, the primary response to homelessness has been to criminalize the activities necessary for survival without housing:
Anti-Homeless Laws and Ordinances
- Sleeping bans: Prohibitions on sleeping in public places, vehicles, or outdoors
- Camping bans: Restrictions on using tents, tarps, or other temporary shelter
- Sitting/lying prohibitions: Bans on sitting or lying on sidewalks or in public spaces
- Loitering laws: Restrictions on remaining in one place without an "apparent purpose"
- Food sharing restrictions: Limitations on distributing food in public places
- Panhandling bans: Prohibitions on asking for money or assistance
- Property storage laws: Restrictions on storing personal belongings in public
- Public hygiene ordinances: Criminalization of urination or defecation in public, despite lack of public restrooms
Growth of Criminalization Approaches
Research shows a significant increase in laws criminalizing homelessness in recent decades:
- Citywide camping bans increased by 92% between 2006 and 2019
- Laws prohibiting sleeping in public increased by 50% during the same period
- Bans on sitting or lying down increased by 78%
- Vehicle residence restrictions increased by 213%
The Impossible Situation
When communities lack sufficient shelter beds but enforce anti-camping ordinances, people experiencing homelessness face an impossible situation: they cannot legally sleep anywhere. This creates a condition where simply existing without housing becomes effectively illegal.
Enforcement Practices
Beyond formal laws, enforcement practices significantly impact people experiencing homelessness:
- Citations and tickets: Financial penalties for violations of anti-homeless ordinances
- Arrests: Criminal charges for repeated violations or failure to pay citations
- Incarceration: Jail time resulting from arrests or failure to appear in court
- Move-along orders: Informal directives to leave public spaces without formal citation
- Selective enforcement: Applying general laws (like jaywalking or open container) primarily to homeless individuals
- Encampment sweeps: Forced removal of homeless encampments, often resulting in property loss
- Property confiscation: Seizure of tents, sleeping bags, and survival gear
Criminal Justice as a Pathway to Homelessness
Involvement with the criminal justice system can directly lead to homelessness:
Incarceration and Housing Loss
- Eviction during incarceration: Inability to pay rent while incarcerated
- Property loss: Belongings discarded or stolen during incarceration
- Relationship breakdown: Family and support networks strained by incarceration
- Housing subsidy termination: Loss of housing assistance due to criminal justice involvement
Post-Release Housing Barriers
- Criminal background screening: Landlords rejecting applicants with criminal records
- Public housing restrictions: Bans on individuals with certain convictions
- Income loss: Employment gaps and barriers due to criminal record
- Supervision requirements: Parole or probation housing approval processes limiting options
- Geographic restrictions: Limitations on where people can live based on conditions of release
Collateral Consequences
- Employment barriers: Difficulty securing work with a criminal record
- Licensing restrictions: Inability to work in certain professions
- Benefit limitations: Restrictions on accessing public benefits
- Financial obligations: Court fees, fines, and restitution creating debt
- Credit damage: Financial impacts affecting housing applications
The Scale of the Problem
With approximately 600,000 people released from state and federal prisons each year and millions more cycling through local jails, the pathway from incarceration to homelessness affects a substantial population. Studies indicate that between 10% and 20% of people leaving incarceration experience homelessness immediately upon release.
Homelessness as a Pathway to Criminal Justice Involvement
Once homelessness occurs, it increases vulnerability to criminal justice involvement:
Criminalization of Survival Activities
- Citations and arrests for sleeping, camping, or sitting in public spaces
- Charges related to public urination or defecation when no facilities are available
- Trespassing citations for seeking shelter in abandoned buildings or private property
- Loitering charges for remaining in public spaces
Visibility and Policing
- Increased police contact due to visibility when living in public spaces
- Higher likelihood of being stopped, questioned, and searched
- Disproportionate enforcement of minor offenses against visibly homeless individuals
- Community complaints driving enforcement actions
Survival-Related Offenses
- Theft or property crimes to meet basic needs
- Drug sales or other underground economy participation for income
- Prostitution as a means of generating income or securing shelter
- Substance use in public spaces due to lack of private space
System Navigation Challenges
- Difficulty receiving court notifications without an address
- Missing court dates due to lack of transportation or competing survival needs
- Inability to pay fines or fees, leading to warrants
- Challenges complying with probation or parole requirements while homeless
The Revolving Door
These bidirectional pathways create a "revolving door" between homelessness and incarceration:
The Cycle in Action
- A person experiences homelessness due to economic factors, health issues, or other causes
- They receive citations for survival activities like sleeping in public
- Unable to pay fines or appear in court, warrants are issued
- Eventual arrest leads to jail time
- During incarceration, they lose possessions and connections
- Upon release, criminal record creates additional housing barriers
- They return to homelessness, often in worse circumstances
- The cycle repeats, with each iteration creating additional barriers
Costs of the Revolving Door
- Human costs: Trauma, deteriorating health, and diminished life opportunities
- Public safety costs: Ineffective use of law enforcement resources
- Financial costs: High expenses for emergency responses, courts, and incarceration
- Community costs: Unresolved homelessness and associated impacts
The Cost Comparison
A study in San Francisco found that each citation for a "quality of life" offense cost the city approximately $20,000 when accounting for police time, court proceedings, and incarceration costs. In contrast, providing permanent supportive housing costs approximately $20,000 per person annually and actually resolves homelessness rather than perpetuating it.
Disparate Impacts
The criminalization of homelessness does not affect all populations equally:
Racial Disparities
- Black Americans are overrepresented in both homeless and incarcerated populations
- Studies show racial disparities in enforcement of anti-homeless ordinances
- Historical patterns of discrimination in both housing and criminal justice systems compound these disparities
- The combined effect creates a particularly harmful impact on communities of color
Impact on People with Disabilities
- People with mental health conditions are disproportionately affected by criminalization
- Behaviors related to mental health conditions may attract law enforcement attention
- Limited accommodations in the criminal justice system for people with disabilities
- Disruption of treatment and medication during incarceration
Youth Vulnerability
- Homeless youth face particular risks in the criminal justice system
- Status offenses (like truancy or curfew violations) that only apply to minors
- Involvement with juvenile justice creating pathways to adult system involvement
- Limited legal rights and resources to navigate the system
Legal Challenges to Criminalization
Legal advocacy has challenged the criminalization of homelessness on several grounds:
Constitutional Challenges
- Eighth Amendment arguments: Cruel and unusual punishment to criminalize unavoidable status
- First Amendment challenges: Free speech protections for panhandling
- Fourth Amendment issues: Unreasonable seizure of property during sweeps
- Due process concerns: Inadequate notice and opportunity to retrieve possessions
- Equal protection questions: Selective enforcement against homeless individuals
Key Court Decisions
- Martin v. Boise (2018): Ninth Circuit ruling that cities cannot enforce anti-camping ordinances if they do not have enough shelter beds for their homeless population
- Reed v. Town of Gilbert (2015): Supreme Court decision affecting panhandling restrictions
- Lavan v. City of Los Angeles (2012): Ruling protecting property rights of homeless individuals
- Jones v. City of Los Angeles (2006): Earlier case establishing that criminalizing sleeping in public when no alternatives exist is unconstitutional
Federal Policy Position
- U.S. Department of Justice has filed statements of interest in cases challenging criminalization
- U.S. Interagency Council on Homelessness opposes criminalization as ineffective and potentially unconstitutional
- HUD grant applications consider criminalization measures in funding decisions
Mass Incarceration Context
The criminalization of homelessness exists within the broader context of mass incarceration in the United States:
Scale of Incarceration
- The United States incarcerates more people per capita than any other nation
- Approximately 2 million people are currently incarcerated in prisons and jails
- Over 70 million Americans have some type of criminal record
- The scale of the system creates a correspondingly large population vulnerable to post-release homelessness
Policy Shifts
- War on Drugs: Policies that dramatically increased incarceration for drug offenses
- Mandatory minimums: Sentencing requirements limiting judicial discretion
- Three strikes laws: Enhanced penalties for repeat offenses
- Reduced rehabilitation: Shift from rehabilitative to punitive approaches
- Reentry barriers: Limited support for people returning from incarceration
Deinstitutionalization Connection
- Closure of psychiatric institutions without adequate community-based alternatives
- Shift of people with mental illness from hospitals to jails and prisons
- Criminal justice system becoming de facto mental health provider
- Inadequate treatment in correctional settings
The Transinstitutionalization Effect
Rather than truly deinstitutionalizing mental health care, the United States has largely "transinstitutionalized" people with serious mental illness from psychiatric hospitals to jails and prisons. Today, the three largest providers of mental health services in the country are jails: the Los Angeles County Jail, Rikers Island in New York, and Cook County Jail in Chicago.
Alternative Approaches
More effective alternatives to criminalization exist:
Housing-Focused Solutions
- Housing First programs: Immediate access to permanent housing without preconditions
- Rapid re-housing: Quick placement into housing with temporary support
- Permanent supportive housing: Long-term housing with services for those with complex needs
- Affordable housing development: Increasing overall housing supply and affordability
Diversion Programs
- Law enforcement diversion: Programs that redirect people from arrest to services
- Homeless courts: Specialized court sessions addressing citations through service connection
- Mental health courts: Alternative processing for people with mental health conditions
- Citation clinics: Events to resolve outstanding citations and warrants
Non-Law Enforcement Responses
- Outreach teams: Non-law enforcement personnel connecting people to services
- Crisis response teams: Mental health professionals responding to behavioral health calls
- Public space management: Trained ambassadors providing assistance rather than enforcement
- Basic needs infrastructure: Public restrooms, storage, and other facilities reducing quality-of-life issues
Promising Model: CAHOOTS (Crisis Assistance Helping Out On The Streets)
In Eugene, Oregon, the CAHOOTS program dispatches teams of medics and crisis workers instead of police to non-violent situations involving mental health, homelessness, and addiction. The program handles about 20% of 911 calls, saves the city millions in public safety costs, and provides more appropriate responses to behavioral health crises and homelessness-related calls.
Reentry Support
Breaking the cycle between incarceration and homelessness requires improved reentry support:
Pre-Release Planning
- Housing identification: Securing stable housing before release
- Benefit enrollment: Connecting to income supports and healthcare
- ID and documentation: Obtaining necessary identification
- Discharge funds: Providing adequate resources for immediate needs
Housing-Specific Programs
- Reentry housing programs: Transitional or permanent housing specifically for formerly incarcerated individuals
- Housing First approaches: Providing immediate housing without preconditions
- Rapid re-housing: Quick placement into housing with temporary financial assistance
- Master leasing programs: Organizations leasing units and subletting to those with barriers
Comprehensive Support
- Employment assistance: Job training and placement services
- Substance use treatment: Access to recovery support
- Mental health services: Continuity of care for psychiatric conditions
- Family reunification: Rebuilding supportive relationships when appropriate
Policy Reform Opportunities
Addressing the intersection of homelessness and criminal justice requires policy changes:
Decriminalization Approaches
- Repealing anti-homeless ordinances
- Implementing constructive alternatives to enforcement
- Creating citation and arrest diversion programs
- Developing non-punitive responses to public space management
Housing Access Reforms
- Limiting the use of criminal background screening in housing
- Creating "ban the box" policies for housing applications
- Developing reentry housing programs
- Reforming public housing eligibility requirements
Criminal Justice Reforms
- Implementing alternatives to incarceration
- Expanding problem-solving courts
- Reducing cash bail requirements
- Creating citation and fine reforms
- Expanding record clearing opportunities
Conclusion
The intersection of homelessness and the criminal justice system creates a harmful cycle that perpetuates both problems while solving neither. Criminalization approaches fail to address the root causes of homelessness, while creating additional barriers that make it even more difficult for people to exit homelessness.
Breaking this cycle requires recognizing that homelessness is fundamentally a housing and social services issue, not a criminal justice issue. By implementing housing-focused solutions, diversion programs, and improved reentry support, communities can more effectively address both homelessness and public safety concerns.
The growing movement toward alternative approaches demonstrates that more effective, humane, and cost-efficient solutions exist. By moving beyond criminalization to evidence-based practices, we can break the revolving door between homelessness and incarceration and create more just and effective systems for all community members.
Key Takeaway
Criminalizing homelessness creates a costly, ineffective cycle that perpetuates housing instability while failing to improve public safety. More effective approaches focus on housing, services, and diversion rather than enforcement and punishment. Breaking the cycle between homelessness and criminal justice involvement requires addressing both systems simultaneously with evidence-based practices.
References & Further Reading
- National Law Center on Homelessness & Poverty. "Housing Not Handcuffs: Ending the Criminalization of Homelessness in U.S. Cities." NLCHP, 2019. https://homelesslaw.org/wp-content/uploads/2019/12/HOUSING-NOT-HANDCUFFS-2019-FINAL.pdf
- Martin v. City of Boise, 920 F.3d 584 (9th Cir. 2019). United States Court of Appeals for the Ninth Circuit. https://law.justia.com/cases/federal/appellate-courts/ca9/15-35845/15-35845-2019-04-01.html
- Metraux, Stephen, and Dennis P. Culhane. "Homeless Shelter Use and Reincarceration Following Prison Release." Criminology & Public Policy, vol. 3, no. 2, 2004, pp. 139-160. https://doi.org/10.1111/j.1745-9133.2004.tb00031.x
- U.S. Interagency Council on Homelessness. "Searching Out Solutions: Constructive Alternatives to the Criminalization of Homelessness." USICH, 2012. https://www.usich.gov/tools-for-action/searching-out-solutions
- White Bird Clinic. "CAHOOTS: Crisis Assistance Helping Out On The Streets." White Bird Clinic, 2023. https://whitebirdclinic.org/cahoots/
- Greenberg, Greg A., and Robert A. Rosenheck. "Jail Incarceration, Homelessness, and Mental Health: A National Study." Psychiatric Services, vol. 59, no. 2, 2008, pp. 170-177. https://doi.org/10.1176/ps.2008.59.2.170
- Bureau of Justice Statistics. "Reentry Trends in the United States." U.S. Department of Justice, 2023. https://bjs.ojp.gov/topics/corrections/reentry
- Treatment Advocacy Center. "Serious Mental Illness and Jails and Prisons." Treatment Advocacy Center, 2016. https://www.treatmentadvocacycenter.org/evidence-and-research/learn-more-about/3695