An unhoused individual lays down on cement steps. Photo by Adobe Stock.
Kinsey Hall ’24 graduated from Santa Clara University with majors in economics and political science and was a 2023-24 Hackworth Fellow at the Markkula Center for Applied Ethics. Views are her own.
Do cities have the right to criminalize homelessness? This is a legal question of great contemporary importance. In fact, in April 2024, the United States Supreme Court considered the question in the widely noted Grants Pass case (more on that below). But too often the question is reduced to a legal matter alone or is answered with visceral and overly simplistic ethical responses. In this paper, I would like to consider this question as a specifically ethical matter. By doing so, I intend to show what is often obscured in our debates about the matter: That there are a multitude of moral options and a great deal of moral complexity involved in thinking about criminal policy regarding homelessness. Addressing the crisis of homelessness requires a diversified response. One such approach includes utilizing the wisdom of traditions of moral reasoning. This paper is an appeal to the wisdom of those traditions. My hope is that this discussion can empower readers to move beyond their reflexive reactions towards more nuanced and ethically informed responses to this challenge.
I am first going to explore the debate surrounding this issue through the available data and existing legal and constitutional frameworks related to homelessness, and then I am going to consider this question in terms of different ethical frameworks which will illuminate the helpful and distinct ways ethics are already employed in this conversation.
The Homelessness Crisis
This question has become a key topic of public discourse as skyrocketing rates of unsheltered homelessness throughout the United States have pushed visible encampments and sleeping in public spaces to the forefront of many citizen’s lives. In California, where 70% of residents view homelessness as a significant problem, the sight of encampments sprawling across sidewalks and parks has become commonplace [1]. Some of the strongest advocates for criminalizing homelessness cite as justification the way that encampments block business and transit corridors, resulting in conflicts with business owners, diminished prosperity, and at times violent interactions between unhoused persons and passersby. Advocates for criminalizing the homeless also invoke public health concerns that run rampant as encampments often lack access to bathrooms and sanitary resources to limit the spread of disease. In some areas, encampments provide an opportunity for drug sale and use, creating further concerns for health, violence, and crime rates. At times, cook fires from encampments have gotten out of control and created larger fires throughout neighborhoods that damage property and threaten lives. With these harsh realities comes increasing pressure on policymakers to criminalize unhoused persons.
Others push back against criminalization, citing data on housing supply to argue that it is profoundly unfair to criminalize someone for being homeless when there is nowhere else to sleep. The statistics paint a striking picture on limited housing supply on the low end of the income scale: Only 34 affordable and available rental homes exist for every 100 extremely low-income renter households in the United States [2]. California, home to just 12% of the nation's population, harbors a staggering 30% of its homeless population, totaling over 171,000 individuals daily [3]. The largest major study on homelessness in the state found that the intersection of high housing costs and low income has created the perfect storm that left participants vulnerable to homelessness. In the state, for every 100 households requiring affordable housing there are only 24 units available, demonstrating the even more limited housing supply in the golden state relative to the U.S. at large. More than half of the state's renters and four in ten mortgaged homeowners are spending 30% or more of their household income on housing, meaning many of the households in the state are significantly rent burdened. Lack of available shelter beds combined with skyrocketing rents often leaves people with no other choice than to sleep outside in public areas or in their cars, reflected in the burgeoning population of 123,423 unsheltered homelessness in the state [4]. The combination of scarce shelter space and a burgeoning homeless population amplifies California's affordability crisis on its streets, causing many to feel that it is morally repugnant to criminalize behavior that is a symptom of a greater societal problem.
This perennial ethical issue has taken on contemporary importance through a recent appeal to the Supreme Court. In 2018, the conflict came before the Ninth Circuit as an appeal from a 2009 lawsuit by six homeless plaintiffs against the city of Boise, Idaho regarding the city’s anti-camping ordinance. The Ninth Circuit embraced the principle that the Eighth Amendment prohibits the state from punishing an involuntary act or condition if it is the unavoidable consequence of one’s status or being, ruling that cities cannot enforce anti-camping ordinances if they do not have enough homeless shelter beds available for their homeless population. In 2019 when the decision was challenged, the Supreme Court refused to take up the case, but after years of climbing homelessness rates and the submission of amicus curiae briefs to the court from “20 States, California’s governor, dozens of cities ranging from Phoenix and San Francisco to Seattle and Anchorage, and myriad community and business groups”, the Court decided to hear Grants Pass v. Johnson in April of 2024.
This class action lawsuit involved a group of involuntarily homeless people who sued Grants Pass, Oregon, over their ordinances that make sleeping in public spaces punishable by civil citation. Because Grants Pass has no public shelters for homeless people, and sleep is a human need, the plaintiffs argued that the ordinance criminalizes their existence and should fall under the Eighth Amendment’s ban against cruel and unusual punishment. On June 28, 2024, the U.S. Supreme Court sided with Grants Pass, reversing the Ninth Circuits precedent and overturning the Martin v. Boise decision [5]. The Supreme Court has given cities and states across the U.S. permission to punish people who are forced to sleep outside, even when they have no other safe option. Now that the Supreme Court has permitted cities to criminalize being homeless even if there is nowhere inside for a homeless person to stay, the story is not over. Every city still faces the hard question of whether they should criminalize such persons, even if the Court has given them the right to do so. In this paper, I will offer a number of ethical - not legal - approaches to the question of criminalizing the unhoused. I hope that these ethical arguments will assist people in deciding how they should proceed under the new legal framework.
Policies that clear encampments and punish public sleeping have been met with polarized reactions. These policies may include criminal citations, fines and fees, or in extreme cases even jail time. In the case of Grants Pass, city code made it illegal to sleep in public parks, including sidewalks and parking lots, or to use sleeping materials to set up temporary living space. Those found in violation over twice in the same year may face up to 30 days in jail and a $1,250 fine [6]. Some advocates in support of criminalization argue that encampments in public spaces are harming tourism and business patronage. Others are concerned about public safety and health concerns from public sleeping, or take issue with the aesthetic impacts on the city streets. Those opposing enforcement policies may feel that these policies violate the rights and dignity of the unhoused population. Some argue that homelessness is an imposed condition rather than a choice, and these policies criminalize an involuntary human need rather than address the root causes of the homelessness crisis. For these individuals, punitive measures targeting visible homelessness represent a misguided strategy that fails to tackle the underlying systemic issues at play.
While the Court's ruling on this issue will provide clarity to just how far cities are allowed to go in moving encampments and enforcement policy, the homelessness crisis in America shows no signs of slowing down and cities and citizens will still have to face the consequences of the severe lack of affordable housing. Amidst the public discourse surrounding cities criminalizing homelessness, ethical considerations are at the forefront, although they often go unacknowledged. Policymakers, law enforcement, and concerned citizens across the United States, especially in major cities across the West Coast, are grappling with the growing homelessness crisis as tent cities and encampments increasingly encroach into public space. While some cities have sought to increase the supply of affordable housing, or provide a right to shelter by enlarging the shelter bed supply, other cities have taken an enforcement approach that penalizes those sleeping outside or forces them to move from public spaces. No matter what approach cities seek, they are all faced with the difficult ethical question: Do cities and municipalities have the right to criminalize homelessness?
Ethical Lenses
Relying on basic ethical lenses can shed light on the moral reasoning at play when articulating responses to this question. The Markkula Center for Applied Ethics Framework for Ethical Decision Making highlights six ethical lenses that provide an essential baseline to engage in ethical discussions and perceive ethical dimensions [7]. These lenses, including the rights lens, the justice lens, the utilitarian lens, the common good lens, the virtue lens, and the care ethic lens, can all be applied to a range of ethical discussions including the question of criminalizing homelessness.
- The rights lens suggests that the best ethical action is the one that protects and respects human rights and dignity. This is often employed in dialogue surrounding homelessness through discussions of people having a right to shelter and a government's responsibility to fulfill that right, or when intervention policy infringes on or protects the rights of people experiencing homelessness.
- The justice lens describes how each person should be given equal or fair treatment, implying that they should be given what they are due (which is not always the exact same for every person). Social justice is often applied to the topic of homelessness by restructuring societal institutions to better serve those experiencing homelessness. Additionally, restorative justice is crucial to consider when specifically discussing the criminalization of homelessness. It emphasizes alternatives to criminal punishment, aiming to break the cycle of homelessness perpetuated by the criminal justice system.
- The utilitarian lens is a results-based approach that prioritizes ethical actions that end in the greatest balance of good over harm for as many people as possible, often deliberated by cost-benefit analysis. Policymakers frequently employ utilitarian reasoning to underscore the benefits of homelessness policy compared to the potential costs to taxpayers, or prioritize policies that will house the largest number of people in the most affordable manner.
- The common good lens argues that respect and compassion for others in community are requirements for ethical reasoning. This lens in the context of homelessness prioritizes showing care to those who are vulnerable in our society, and shows up in discussions that prioritize our mutual concern and responsibility to care for and help those experiencing homelessness.
- The virtue lens approaches ethical decision making with certain virtues in mind that are dispositions and habits that enable us to act according to the highest potential of our character. This lens could be used to understand the importance of providing housing in the first place, and how safe and stable shelter can enable people to reach their full potential.
- The care ethics lens is rooted in the flourishing of individuals through their relationships and interdependence, relying on kindness and interconnectedness to resolve ethical dilemmas. Within homelessness dialogue, the care ethics lens uplifts organizations that connect intimate interpersonal duties to societal duties such as charities that care for those experiencing homelessness or policies that take a holistic approach to caring for the unhoused.
Understanding these lenses and how they can be applied to the question of criminalizing homelessness reveals the extent to which ethics is already playing a role in these conversations, and how using the lenses can give us important insights to deciding what the ethical solution is to this problem. By exploring two case studies that are emblematic of the larger issue occurring throughout the state of California and the country, and teasing out the ethical issues at play, I hope to reveal the important role that ethics plays in the conversation and identify some of the ethical frameworks that are reflexively employed to discuss this issue.
Shutting down encampments
Throughout the country, candidates have capitalized on constituents’ dissatisfaction with how the homelessness crisis has been handled by making campaign promises to clear encampments. Mayor Mark Dion of Portland, Maine, is one such mayor who made good on his election promise by conducting a sweep of one of the cities largest homeless encampments, despite protestors blocking the roads with their cars and calling the displacement “inhumane”. In a statement, Mayor Dion evoked the care ethic lens as he spoke to the dangers of encampments stating “They need to come in from the cold. We can't just wait and see if they can survive a frigid winter. We've already had ten fires, exposure deaths, we continue to have overdose events… We can't allow individuals to take that risk. That's not being a caring city, that's standing by to watch slow motion suicide” [8].
Many of the protestors who stood up against this policy would likely label these comments from the mayor as paternalistic. Paternalism is a way of approaching homelessness that believes people in positions of power should restrict homeless individuals autonomy in their best interest. Homelessness service providers describe this approach as “justifiable paternalism”, which seeks to protect very vulnerable people from the negative consequences of their own decision-making. Those involved in outreach notice that the use of force, evident in the involvement of police and encampment closure, can sometimes generate a “window of opportunity” which enables service providers to connect with “service resistant” individuals. This approach presents compelling the homeless to move from an encampment to shelter beds as a “beneficent concern for the welfare of those targeted” [9].
Paternalism is often branded with a negative connotation because of the emphasis we place as a society on protecting individual autonomy and rights. Those who push back against justifiable paternalism may argue that people experiencing homelessness are the champions of their own condition, challenging the assumption that everyone desires conventional housing as paternalistic in nature. Alternatively, they may argue against justifiable paternalism from a libertarian background, which opposes government regulation in the name of human freedom and expects that each of us has a fundamental right to liberty – the right to do whatever we want with the things we own, provided we respect other people’s rights to do the same. Regardless of which specific framework is employed, the core conflict between these perspectives and paternalism is the infringement of autonomy. Recognizing the diversity of wants and needs among people rightly requires the protection of our autonomy. However, many things may be labeled as paternalism due to an overly expansive view of autonomy. Surely, in the case of people experiencing homelessness there are many factors that may unduly constrain their available choices. Philosopher Michael Sandel captures this concept that we inherently understand, expressing how “A homeless person sleeping under a bridge may have chosen, in some sense, to do so; but we would not necessarily consider his choice to be a free one.” [10] Thus, rather than painting Mayor Dion’s comments in a bad light, we can employ Aristotle's ethical framework to open up a more nuanced evaluation that takes into consideration the virtues that we should value as a society.
Aristotelian theory describes how policymakers such as Mayor Dion may ethically understand policies that criminalize homelessness. Aristotle adds depth to the paternalistic approach through his theory of justice, in which justice means giving people what they deserve. Aristotelian theory sees justice as teleological, which simplistically put means that everyone and everything has a greater end or purpose to fulfill (their telos). Aristotle posits that we can identify certain common things that people need, and by fulfilling these needs citizens can pursue their telos and cultivate good character [11]. In this context, providing some form of safe shelter extends beyond mere survival, enabling individuals to engage in social life and virtuous pursuits. A safe and healthy home would have its own telos under Aristotelian theory, which is to provide an environment that allows for this type of human flourishing. By fulfilling these fundamental needs, policymakers can contribute to the realization of individuals' telos and promote the cultivation of good character within society.
Of course, the law necessarily inhibits our personal autonomy. Nevertheless, Aristotle recognizes that the law can help guide people to what they deserve and foster formation of character. In holding this view of the law, Aristotle may expand the notion of paternalism to allow for some form of intervention that helps individuals pursue their telos. Is it so controversial to say that a person has a purpose to develop into a happy, just, and social being and that having a safe place to shelter and a roof over their head is conducive to that purpose? Are the strict proponents of autonomy missing the goal of truly protecting someone’s freedom by ignoring the circumstances that may actually cause greater restrictions of their overall capabilities?
An alternative shelter option
In one city in California, the mayor is breaking with common models to tackle the homelessness problem in his jurisdiction. In San Jose, data from 2022 estimates a population of 6,650 homeless people within the city, many of whom live in encampments near the Guadalupe River [12]. Living alongside the river presents numerous challenges for the residents, including the cold, wet, and muddy conditions and the constant threat of flooding during storms. Alongside the dangers presented to residents, the encampments also represent a threat to the environment with pollution flowing directly from the rivers and creeks into the San Francisco Bay.
With mounting pressure from the San Francisco Bay Regional Water Quality Control Board and the Federal Environmental Protection Agency for San Jose to immediately address this issue or face substantial fines, Mayor Matt Mahan jumped to action through the construction of “safe sleeping units” on public land. Mayor Mahan cited disillusionment with existing strategies for housing construction and local officials who offer excuses for failure to adequately address homelessness, among other reasons, as his motivation. These safe sleeping units are built on public land at a fraction of the $1 million per door that local governments pay with the current common strategy favoring construction of permanent affordable housing units [13]. Alternatively, safe sleeping units aim to fill the steps between a traditional shelter bed and a unit of permanent affordable housing. As a result of these quick build projects, the unsheltered homeless population has dropped 11% in San Jose since the inception of the program, a promising result.
The Martin v. Boise framework prohibited cities from criminalizing the unhoused when there are existing places to sleep. However, Mayor Mahan understood that under that framework local governments were only prevented from closing encampments when there was not an adequate supply of safe shelter. The existence of available shelter beds through construction of safe sleeping units meant that San Jose residents could be required to use them [14]. Mahan’s policy can be understood in several fruitful ways by drawing on the utilitarian framework. Traditional utilitarianism advocates for actions if they promote the greatest utility for the greatest number of people. This version, which is mostly credited to Jeremy Bentham, is closely tied with a free market approach and the assumption that voluntary exchange makes both parties better off.
As we consider a utilitarian calculus that measures pleasure over pain for everyone, counting everyone's interests equally, we would consider the benefits of housing the homeless in safe sleeping units compared to the costs to the entire community. The benefits include aesthetic enhancements to the community (via, for example, the removal of unsightly encampments), increasing overall enjoyment of public spaces through access to public bathrooms, benches, etc. that may otherwise be occupied, and alleviating the suffering of those who would otherwise sleep outside by providing shelter, running water, and access to basic sanitation. The costs, on the other hand, could involve the financial burden or opportunity cost imposed on society to create these housing units, as well as the distress caused to those forced to move indoors against their will or into unsuitable conditions. A hardline utilitarian such as Bentham would argue that we have no natural rights as humans to protect, and instead that maximizing happiness of the greatest number is a measure of right and wrong social actions.
This traditional version of utilitarianism often has a bad reputation, because similarly to paternalism it tends to ignore the importance of individual rights and autonomy. Under a strict utilitarian perspective, the autonomy of an unhoused person to live wherever they choose would not be prioritized if it results in harm to themselves or the broader community. Consequently, this traditional approach might conflict with the Martin v. Boise framework, which restricted local governments' ability to relocate or clear encampments from public spaces. A traditional utilitarian may advocate for Mayor Mahan’s policy, arguing that the tiny homes are clearing streets of unsightly encampments for a fraction of the cost of permanent affordable housing. As Mayor Mahan argued “with each homeless resident requiring up to $65,000 in emergency room visits, 911 response and trash removal per year”, this burden on our civic finances necessitates a speedy response [15]. Although this may not be the ideal solution for those experiencing homelessness, who may face criminal charges if they do not comply with their relocation to a tiny home, proponents of a utilitarian perspective may argue that the benefits, such as reducing costs for businesses and enhancing the aesthetic appeal of the community, outweigh the negative repercussions faced by those displaced. A hardline utilitarian would contend that the overall welfare of the community is advanced through the diminishment of economic burdens and improvement of common space, even at the cost of the individual rights of those sleeping in public property.
However, other versions of utilitarianism beyond the most traditional sense could reconcile respecting individual rights and preferences with the utilitarian philosophy and take more than monetary value into consideration. The preference-satisfaction definition of utilitarianism moves away from maximizing utility, and instead prioritizes maximizing people's preferences. Utility in the most basic sense means causing the most amount of pleasure and the least amount of pain. However, the evolution of utilitarian theory away from the most hardline sense seeks to take individual preferences into consideration instead of exclusively maximizing pleasure and reducing pain. Moving to preference-satisfaction utilitarianism especially interacts with Mayor Mahan’s language that requires individuals to move to tiny homes when they are available.
Mahan is hinting at a population of homeless individuals that are declining shelter when it is available, and preference-satisfaction utilitarianism provides policymakers with an important perspective to serve this population. If individuals are declining an offer for shelter but they want shelter, cities should be asking how they can meet their needs and what about the available shelter is undesirable. If individuals are declining shelter and they do not want shelter, policymakers must find ways to respect this preference while minimizing their harm to others. Meeting people’s desires for shelter could come to fruition by providing supervised encampments, or shelter beds that meet unique situations such as allowing pets or partners. While favoring the preferences of how the powerful and wealthy want their community to look over the needs and the desires of the unhoused may be a common view, it is a mistaken version of preference-satisfaction. Through the preference-satisfaction lens, Mayor Mahan’s policy could be seen as maximizing already privileged members of society's preferences over those who are most in need, which may not be the most effective way to handle the problem. By engaging with preference-satisfaction utilitarianism to consider the preferences of those who are impacted the most over the preferences of those who are less personally affected, a utilitarian approach can be more considerate of individual autonomy and personal freedom.
Conclusion
The question of criminalizing homelessness could benefit from the clear use of ethical frameworks to better highlight the stakeholders and respective opinions. As seen through these case studies, sometimes people coming from very different backgrounds or “frameworks” can even arrive at the same conclusions. In a time where our political discussions are more polarized than ever, ethics are a powerful tool to unite us and to create a common language to discuss the most pressing issues of our time. Applying ethical frameworks to specific case studies reveals the broader need for a return to moral thinking through the creation and enforcement of homelessness policy. Above all else, the ethical sense of respect for human dignity should be at the forefront of any approach. Holding to the truth that all people have inalienable dignity and worth means that there are ethical costs on all of us who stand idly by as the homelessness crisis strips thousands of individuals of their humanity.
Endnotes
[1] PPIC (https://www.ppic.org/publication/ppic-statewide-survey-californians-and-their-government-september-2022/)
[2] The gap (https://nlihc.org/gap)
[3] The gap (https://nlihc.org/gap)
[4] HUD (https://www.huduser.gov/portal/sites/default/files/pdf/2023-ahar-part-1.Pdf)
[5] Supreme Court (https://www.supremecourt.gov/opinions/23pdf/23-175_19m2.pdf)
[6] Supreme Court (https://www.supremecourt.gov/opinions/23pdf/23-175_19m2.pdf)
[7] Markkula Center (https://www.scu.edu/ethics/ethics-resources/a-framework-for-ethical-decision-making/)
[8] WMTW 8 News Portland (https://www.wmtw.com/article/crews-clear-large-portland-homeless-encampment-casco-bay-bridge/46265000#:~:text=We've%20already%20had%20ten,said%20Portland%20Mayor%20Mark%20Dion.)
[9] Johnsen, S., Watts, B., & Fitzpatrick, S. (2021). Rebalancing the rhetoric: A normative analysis of enforcement in street homelessness policy. Urban Studies, 58(2), 355-371. https://doi.org/10.1177/0042098019898369.
[10] Sandel, Michael. (2010). Justice.
[11] Sandel, Michael. (2010). Justice.
[12] City of San Jose Homeless Count and Survey Comprehensive Report (https://www.sanjoseca.gov/home/showpublisheddocument/92524/638054026112130000)
[13] Mercury News (https://www.mercurynews.com/2023/09/30/mahan-time-for-the-blame-game-on-homelessness-to-end/)
[14] Mercury News (https://www.mercurynews.com/2023/09/30/mahan-time-for-the-blame-game-on-homelessness-to-end/)
[15] Mercury News (https://www.mercurynews.com/2023/09/30/mahan-time-for-the-blame-game-on-homelessness-to-end/)
