Cruel and Unusual Punishment

The U.S. Supreme Court decided on Monday that it would not hear an appeal by the city of Boise against a lower court ruling that said it could not prosecute people for sleeping and camping on the streets.

In effect, it upheld the 9th Circuit Court, which said that prosecuting homeless persons when there is no available shelter is unconstitutional because it violates the Eighth Amendment prohibiting “cruel and unusual punishment.”

On the face of it, they are right. Society should not punish a person for being homeless. It’s not a crime, but an extremely unfortunate circumstance. Or, as the 9th Circuit judges said, they should not be prosecuted for an “unavoidable consequence of one’s status or being.” It would be like punishing someone for being mentally ill, which is the case with many homeless people.

Does jailing or fining vagrants belong under the constitutional rubric of “cruel and unusual punishment?” The amendment reads: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” It was included in the Bill of Rights to prevent, in the words of Patrick Henry, the introduction in America of “the practice of France, Spain and Germany of torturing, to extort a confession of the crime.”

Can clearing homeless people from the streets of America’s cities and jailing people when decent shelter is unavailable — a condition of the court’s ruling — be considered a punishment? Perhaps not in the strictest interpretation of the word, but it is a remedy that is certainly cruel.

In their ruling, the judges decided that the solution to homelessness cannot be to punish the homeless. Fair enough.

But is the solution to allow them to sleep on public sidewalks?

In its presentation to the Supreme Court, Boise warned that the 9th Circuit’s “far-reaching and catastrophic” decision will handcuff the ability of municipalities to maintain health and safety.

Advocates for the homeless derided Boise’s argument as “dramatically overwrought.” But it probably expresses with some accuracy the desperation of local officials.

No one had expected the Supreme Court to solve the agonizing dilemma of homelessness. But municipal officials across the country had hoped that it would at least provide some guidance regarding the quality of shelter that must be provided before a city can crack down. Dozens of cities trying to balance compassion for the poor with an obligation to maintain a civilized environment were disappointed, thrown back on their own resources.

Local governments cannot be accused of indifference. Ever-larger resources have been committed to the problem, and yet it has only worsened. For example, San Francisco plans to spend $100 million more than it did last year on homeless services, bringing its annual expenditure to $405 million. The number in Los Angeles is even higher, at $450 million.

In New York City, Mayor de Blasio announced on Tuesday that the city will create 2,000 apartments and beds in informal shelters over the next five years. Last month, the mayor said that 18,000 city workers are being trained to report the location of homeless people they encounter to 311 to facilitate outreach.

More money, more beds, more staff, all are needed. So are new ideas, like so-called “housing ladders,” which encourages aid recipients to keep moving up to higher levels of housing independence and financial self-sufficiency. Easier said than done, but something that must be done where it is possible.

Still-valuable old ideas should be revived, like longer hospital stays for the mentally ill, for whom more beds is not the solution. The short-term institutionalization currently favored by the authorities merely shunts them back out onto the streets without any greater ability to cope; it is a revolving door of despair.

In short, punishment is not an answer; but neither can the crisis of homelessness be allowed to go on like this. Cities have no choice now but to do more, and to do it better.