
Prosecuting homeless for sleeping outside may violate U.S. Constitution: ruling - DoreenMichele
https://www.reuters.com/article/us-idaho-homeless/prosecuting-homeless-for-sleeping-outside-may-violate-u-s-constitution-ruling-idUSKCN1LK26U
======
tmaly
Talk to anyone in law school, interpretation of the constitution seems far
more flexible than it should be. Look at how many amendments we have, yet many
are not even considered. They play twister with a few to meet some end

~~~
codeplea
I agree that it seems some amendments are ignored, but also there is no one
"right" interpretation of any amendment. I found this article, The Myth of the
Rule of Law [1], to be very enlightening.

[1]
[http://faculty.msb.edu/hasnasj/GTWebSite/MythWeb.htm](http://faculty.msb.edu/hasnasj/GTWebSite/MythWeb.htm)

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swebs
How does this relate in any way to cruel and unusual punishment?

~~~
skywhopper
Arresting them, charging them with a crime, and putting them in jail... for
sleeping in the only place they can. That is cruel punishment because the
"crime" is unavoidable.

~~~
gamblor956
What's cruel about a warm, clean bed with 3 meals a day and clean clothes?

The _fine_ is far crueler than the time, since the fine robs them of money to
spend on food.

~~~
skywhopper
An arrest means it's that much harder to get a job in the future. It means
they have court fees and whatever else the local town tacks on to pay. Jail
time means they can't look for work (or might lose whatever job they do have)
or socialize, or get treatment. Getting arrested means being hassled and
possibly assaulted by police who are empowered to use deadly force.

~~~
pmiller2
/s/An arrest/A conviction

Arrests don’t show up on background checks. Only convictions and pending
charges do.

~~~
eesmith
[https://work.chron.com/can-still-job-got-arrested-but-not-
co...](https://work.chron.com/can-still-job-got-arrested-but-not-
convicted-21382.html) \- "People with arrest records, even if they weren't
convicted or charged with a crime, sometimes face job search difficulties."

Also, "Many third-party background checks do include criminal record
information, including arrests that took place during the past seven years. If
someone applies for a job with an annual salary of $75,000 or more, the seven-
year limit is lifted and arrest records many time may appear on the background
check."

And, "If you are planning on a career that requires you to obtain a
professional license, you may have to disclose your arrest record as part of
the application process. Whether the arrest affects your ability to receive a
license depends on state law and the licensing board's policies."

------
geggam
Perhaps we will quit criminalizing the poor. My hopes aren't too high though.

~~~
supernova87a
Why do you make excuses for poverty being a reason to break society's rules?
You suggest people who are poor get a more permissive set of rules? How about
rich people?

Your individual inclination of being charitable isn't a policy for regulating
or governing a society successfully.

I remember a Facebook acquaintance who decried someone charged with fare
evasion on the subway, "because we're criminalizing being poor". What about
the poor people who are paying their fare, obeying the law? Why are you
forgiving the law breaker, and doing nothing for the law abider? Or actively
showing them why following the rules is pointless?

Consistently enforcing rules benefits the least advantaged people in society
the _most_.

And I agree with the commenter below that the reasoning on display in the
court's opinion is really shady. You can be exempt from obeying law because of
your circumstances or status? That's really workable? Who decides? What level
of criminal act is justifiable for homeless people then? How about using the
street as a public toilet? Are they exempt from that too because it's a
biological imperative?

This is full of holes.

~~~
MattGrommes
They're not saying the people are exempt from obeying the law, they're saying
the law is wrong. If there's no room in shelters and someone has no home to
sleep in or money for a hotel, what are they supposed to do? That's not a
rhetorical question, what are they supposed to do? Go to jail? We already have
laws against public indecency that cops are supposed to enforce but
criminalizing the act of sleeping when you have no other choice is what this
is about.

~~~
gamblor956
Do you honestly believe that someone is better on the streets, exposed to the
weather, without access to restroom facilities, food, or healthcare, than in a
facility where they get all of that?

~~~
MattGrommes
No, I absolutely believe they should have access to all of that instead of
sleeping on the streets. But I also absolutely know jail is not that place.
See other comments about the quality of jail facilities or talk to somebody
who has spent time in jail. This wouldn't be an issue if there were enough
shelters for everyone who wanted to be in a facility.

~~~
gamblor956
As a former public defender, I've actually visited every jail and prison in
California. They're not shitholes. Some, like Chino, or even downright
luxurious compared to living in a trailer park like the kinds you would find
in Appalachia or on a reservation.

I agree that non-incarceration facilities would be preferable. But as a person
who has _actually represented the homeless_ I am 100% certain that a large
number of the homeless would refuse to live in a homeless shelter if it meant
giving up booze and drugs.

~~~
DoreenMichele
_I am 100% certain that a large number of the homeless would refuse to live in
a homeless shelter if it meant giving up booze and drugs._

Those are typically being used to self medicate for a legitimate issue,
probably a biological issue. Substitute _their prescription medication for
their deadly condition_ and see how you feel then about the idea of requiring
them to give it up.

They may or may not have a proper diagnosis. I don't think that is relevant.

When we know for certain how to completely and reliably cure addiction and
mental health issues and reliably identify all health issues in a speedy
fashion, then I might have some sympathy for such an attitude. But we aren't
there yet.

~~~
saagarjha
Alcohol, to my knowledge, is not self medication for a legitimate issue. What
deadly condition do they have that requires "booze and drugs"?

~~~
Broken_Hippo
If you mean that alcohol is not generally prescribed by doctors to treat an
issue, you are often correct outside of things like wiping before giving
yourself an insulin shot.

However, many people use alcohol to self-medicate for legitimate issues. The
fewer services available to you, the more appealing alcohol and other drugs
seem. Alcohol is, after all, cheap and readily available.

Sometimes it is as simple as trying to be able to withstand a cold, wet night.
Sometimes folks are in pain (a variety of things can cause this, from tooth
decay to sore feet to serious issues). If you cannot afford psychiatric
medications, alcohol is a way out. It might not be ideal, but it is available.
More available than health care in many cases. After all, you are speaking of
folks that don't have actual shelter, a proper toilet, sanitary conditions, or
a place to store or cook food regularly.

I'll add that simply being homeless can be a deadly condition as can a myriad
of things that you might go to the doctor for. Seriously, if you simply
couldn't get anything to treat your condition, what do you think your options
would be? What if daily life made you absolutely miserable and you couldn't
find a way out?

~~~
saagarjha
Again, I'm no expert on alcohol, but is it really medication? It doesn't fix
the underlying issues (stress, chronic pain, depression, etc.) at all; it just
masks them. I guess you could classify it as similar to a painkiller, but even
with those there are usually limits to how much you can self-medicate yourself
with.

~~~
Broken_Hippo
That's the point of self-medicating with it. Sure, it won't cure anything, but
if you don't have access to the cures (shelter, steady food, medical care),
masking is the next best thing.

And that is the entire point. Not having access to the things "normal" society
does makes things different.

------
RcouF1uZ4gsC
I don't have much hopes that this ruling will survive an appeal to the US
Supreme Court. The Ninth Circuit is one of the most overturned circuits by the
Supreme Court.

~~~
eric_b
The Ninth Circuit has a fairly obvious agenda. They are activist judges -
using the bench to push policy. Whether you agree with them or not, there is
nothing impartial about the way they conduct their work.

~~~
kevinh
Can you point out some examples of the ninth circuit bypassing proper
procedure and jurisprudence to push their own policy?

~~~
eric_b
Stephen Reinhardt was a self proclaimed activist judge. Wikipedia has decent
info on how he conducted himself:
[https://en.wikipedia.org/wiki/Stephen_Reinhardt#Judicial_phi...](https://en.wikipedia.org/wiki/Stephen_Reinhardt#Judicial_philosophy)

The very makeup of the court is unusual, and results in issues. Even SCOTUS
thinks it should be changed:
[https://en.wikipedia.org/wiki/United_States_Court_of_Appeals...](https://en.wikipedia.org/wiki/United_States_Court_of_Appeals_for_the_Ninth_Circuit#Controversy)

The fact that they are reversed so often, have firebrand partisans on the
bench (Reinhard recently died, but there are others carrying his ideology),
and don't even come to a complete consensus between all the judges is enough
for me to conclude it's not the most impartial court around.

(I wager other apellate courts suffer from similar issues, but I'd prefer my
judges to be as unbiased as possible, even if I mostly agree with their
agenda)

~~~
gnadx
So.... no examples.

------
Nomentatus
David Johnston's stubborness continues to change the world (and the de facto
law.) A homeless guy who changed the world far more than most of us ever will,
for the better.[https://www.cbc.ca/news/canada/british-columbia/court-
strike...](https://www.cbc.ca/news/canada/british-columbia/court-strikes-down-
victoria-bylaw-against-homeless-camping-1.750534)

------
gamblor956
The homeless aren't prosecuted for sleeping outside. They're prosecuted for
public indecency (i.e., exposing their privates to passersby and children),
drug use, threats, physical violence, public intoxication.

The homeless advocates behind this lawsuit also assume that street life is
somehow preferable to jail or prison, where occupants are provided 3 square
meals a day, warm and clean clothing, a clean dedicated space to sleep, and
all the free health services you need.

EDIT: Former public defender here. People have this bizarre, media-fueled
image of jail and prison as horrible places to live. However, Oz is the
minority of facilities--Orange is the New Black is far more representative of
your typical incarceration facility. In many states, and especially on the
West Coast, prison and jail facilities are nicer than the local schools. The
only long-term homeless I've met that didn't want to go to jail--and in LA,
I've encountered thousands of homeless individuals--were the drug addicts and
drunks, because behind bars you're not allowed to drink or do drugs and they
might give you medication that triggers withdrawal.

~~~
robbyking
> The homeless aren't prosecuted for sleeping outside.

They most certainly are [1]. The people suffering from homelessness that you
see in places like the Tenderloin or the Mission in San Francisco only make up
a small percentage of the total number of people on the streets; what you see
there are the worst cases of addiction and chronic homelessness, not the total
picture. In fact, the largest percentage of homeless people are households
[2].

[1] [https://sanfranciscopolice.org/civil-sidewalks-
ordinance](https://sanfranciscopolice.org/civil-sidewalks-ordinance) [2]
[https://endhomelessness.org/homelessness-in-
america/homeless...](https://endhomelessness.org/homelessness-in-
america/homelessness-statistics/state-of-homelessness-report/)

~~~
gamblor956
SF does not actually enforce these ordinances. The individuals must be
committing a separate crime (like drug use, or public indecency). This charge,
in the rare instances when it is imposed, is a tag-along charge which is
frequently used to bump a crime up to a felony so that they can send the
individual to a mental health facility.

~~~
chris_wot
An law that is not enforced because it is unreasonable or unjust should be a
law that is taken off the books.

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friedman23
> The U.S. Constitution’s prohibition against cruel and unusual punishment
> bars cities from prosecuting the homeless for sleeping outside on public
> property when they cannot obtain shelter, a federal appeals court ruled on
> Tuesday

This will get overturned.

------
ashildr
Land of the free. Christians.

------
malvosenior
This is a tough one because as a homeowner I really don't like that an army of
homeless people can setup encampment by my home on public property (in part
maintained by my tax dollars) and then bring crime, aggressive panhandling,
trash (lots of it) and lowered property values to my neighborhood.

I'd really not like to see that expanded and we should be in search of better
alternatives that don't punish productive members of society.

~~~
skywhopper
The reasonable solution from a practical point of view, then, is to use your
political power as a homeowner to push your municipality to provide sufficient
services to the homeless population to provide them with shelter and to help
them find more permanent places to live. Criminalizing this stuff is very
likely a lot more expensive than just providing enough beds and shelter and
basic for everyone who needs one, anyway.

~~~
DuskStar
> is to use your political power as a homeowner to push your municipality to
> provide sufficient services to the homeless population to provide them with
> shelter and to help them find more permanent places to live.

And what if it turns out that homelessness, on a local scale, is like traffic
- and providing more services (building more/bigger roads) just creates more
homeless in the area (induces more people to drive)? Now you've spent what's
likely to be a significant amount of money, and made no progress on his
problem.

~~~
stephengillie
> _And what if it turns out that homelessness, on a local scale, is like
> traffic - and providing more services just creates more homeless in the
> area?_

Do you honestly believe most people are so lazy that they are desperate to
lose everything they have? If so, why do high school students give up their
after-school time to flip hamburgers and bag groceries - because otherwise
they will starve? I'll encourage you to read about Maslow's hierarchy.

~~~
berbec
I'd like to think the point was that such policies may attraco out of town
homeless, or get them shipped there. Many municipalities have been caught
giving the homeless bus tickets.

~~~
Broken_Hippo
Going from town to town is really difficult when you are homeless: Not
impossible though. It will happen some, and already does to some extent since
there are homeless folks that travel to better climates to avoid freezing to
death. Not all, though, hence seeing homeless folks in places like Chicago.

Wouldn't the solution for this sort of thing is to make sure everywhere has a
robust system to help homeless folks? The solution doesn't need to be the same
thing in every city so long as the outcome is the same. Towns of 3000 have
different problems than towns of 40k, 200k, and 1 million, after all.

As far as municipalities pushing folks off on other towns, that (in my eyes)
is horrible and the folks responsible should be fired. If a city thinks this
is a feasible option, it means they haven't fixed the problems they have and
do not have a robust enough system in place.

