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Prosecuting homeless for sleeping outside may violate U.S. Constitution: ruling (reuters.com)
97 points by DoreenMichele on Sept 4, 2018 | hide | past | web | favorite | 141 comments

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

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

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

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.

It also wouldn't have been a crime at one time. There used to be wilderness and people just existed. Now, all the land is owned by someone. If you aren't one of the haves, it gets increasingly challenging to find someplace where it is legal for you to even exist.

BLM land is free for camping and in large quantities in the West.

If you are indigent, there are no soup kitchens on BLM land.

I spent nearly 6 years homeless. I spent a lot of time looking for free, legal camp grounds with access to internet and access to places to buy food, etc. I never found a single one.

If you can afford to camp for fun as a middle class activity, that works. If you are indigent and trying to figure out how to earn an income, resolve your problems and get your life back, BLM land does you no good.

I wished I could have made that work. But I had no car.

In WA State, most Federal Parks charge a $5 fee just to enter the park. Camping overnight is usually $11-15, with a 2-week limit, specifically to prevent people from living there.

Even without that limit, that's still $330-450 a month in rent. That can rent a room in a college house (with 6 other people) in Seattle, and maybe a whole apartment in the rural areas where Federal Parks are located.

(Reminder to self: Bureau of Land Management isn't Black Lives Matter)

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.

They don't pay fines, come on. What is the government going to do? Garnishee their wages? Ruin their credit score? Prevent them from taking out a huge mortgage?

It's absurd that the police spend so much time and money "fining" people for things that they're just going to do again anyway. The solution involves not fining people, but instead having a system that can help treat the problems they have, not just throw them in jail over and over.

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.

/s/An arrest/A conviction

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

https://work.chron.com/can-still-job-got-arrested-but-not-co... - "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."

The fact that you don't get a choice in the matter is what's cruel.

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

The modern carceral system is a cruelty engine designed to perpetuate a state of cyclic incarceration for the poor, to the enrichment of those who own for-profit prisons. The idea that anyone could defend the state of the modern prison system in America is mind-boggling.

Prison does technically feed and house people, and does so at a cost an order of magnitude higher than individual cities simply doing so at their own cost. This money goes to lobbyists who advocate for three-strikes-style laws to increase the prison population, and to line the pockets of prison owners and the politicians they pay. The imprisoned are without liberty or the opportunity to pursue happiness, though they are still technically alive, but only because if they were dead they would not generate revenue.

The punishment for breaking this law is the same as breaking any other law. You can have a problem with the law but the punishment isn't cruel or unusual.

Coincidentally enough, a judge actually recently passed a ruling that says the opposite.

I’m curious, if they can’t go to a shelter, and they have no home, where precisely should they even exist?

Why not just read the opinion? The case name is in the article, this is the very first link when you google it: http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/04/15...

I don't see it as so illogical. Judicial ideas of what constitutes "cruel" have for obvious reasons changed a lot over the centuries.

Neat thanks.

>We consider whether the eighth Ammendment's prohibition on cruel and unusual punishment bars a city from prosecuting people criminally for sleeping outside on public property when those people have no home or other shelter to go to. We conclude that it does.

Still, it seems unrelated to cruel and unusual punishment. Putting people in jail is standard punishment for many crimes. It seems like the problem is in the prosecution itself before any sort of punishment is decided.

They’re linked. Punishment which doesn’t fit the crime can be cruel and unusual even if it’s not for a crime where it does fit. For example, executing someone for petty theft would likely be held unconstitutional, even though it’s an allowable punishment for first degree murder.

It is rather unusual to put someone in jail because that person doesn’t have a home. And it’s cruel to make someone a criminal because they don’t have a home.

I'm willing to bet these judges live in a nice gated community where the prospect of them and/or their children stepping in excrement or needles is zero. While in a utopia I'd agree, nobody should be arrested for just existing in the wrong place, "criminalizing" this behavior is the only way to force these people into a fully-functioning shelter where they cannot spread disease and filth to the rest of the population. For someone who's best option for sleep is a sidewalk, how is jail some sort of cruel and inhumane treatment?

> spread disease and filth to the rest of the population

You want to quibble with constitutional minutiae, but drop that whopper without evidence?

I mean, can you cite even one instance where someone got sick from interacting with someone who... slept outside?

Sleeping outside is almost never just sleeping outside. There’s open defecation, drug use, public urination, and needles left on the ground that usually accompany it. It’s a major public health hazard.

Yes, it is, and it should be dealt with as such. Criminalizing peoples’ existence is not dealing with the problem itself.

Surely you don't suggest the police wait around for public defecation? Do you also suggest public intoxication should be legal, since that too is criminalizing (a certain type of) existence. All crimes are crimes of existence, it's a meaningless platitude to call it such. You merely sympathize and think street sleeping should be allowed, likely because you don't have to deal with the consequences of it happening on your front porch.

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

I hope so too. But there is policy, and there is democracy, and democracy is more important than policy. The people of Boise decided how to govern their community. That decision should not be overturned without a compelling constitutional basis.

The entire idea of a constitution is that policy is sometimes more important than democracy.

The people of the city of Boise decided to discriminate against the most vulnerable members of society. That is a failure of democracy, and it's why we have things like the constitutional prohibition against cruel and unusual punishment.

The Constitution says nothing about how to treat the “most vulnerable.” Voters get to decide how nicely or badly to treat people on the basis of their circumstances. The prohibition on cruel and unusual punishment sets certain narrow limits (can’t flay people alive), but those apply to everyone equally.

When you strip away the judicial smoke screen, what the ninth circuit really decided is that the lack of available shelter spots should be a defense to liability under vagrancy laws. That’s a great policy. But it has nothing to do with whether the punishment is cruel or unusual. Constitutionally, the people of Boise don’t even have to have any homeless shelters. Whether they do or not is a matter of their on conscience. And whether they do or not, they can still enforce vagrancy laws (which date to the 16th century).

>The people of Boise decided how to govern their community.

Overturn Citizens United and you may see the people start deciding in other directions that actually benefit the homeless & poor.

"In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread." - Anatole France

The rich corrupt government and steal from medicaid, literally killing people for another yacht... so don't give us that pseudo-mertiocratic tripe.

I believe that was Anatole's point.

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.


One of the most longstanding principles of functional legal systems is that the law must be capable of being obeyed. (See Lon Fuller's famous book "The Morality of Law" for the canonical discussion.)

When legal rules are literally impossible to obey for some people, they cease acting as legal rules and just become status crimes. If it's illegal to sleep outdoors, then anyone who doesn't have the money to sleep indoors becomes a criminal no matter what they do.

If you're seriously interested in engaging with this question, I've written about it some from pp. 1059 onward of this law review article.[1] Jeremy Waldron, a really important philosopher of law, has also written several articles on the subject, his "Homelessness and the Issue of Freedom" is particularly important.

[1] http://paul-gowder.com/Equal_Law_in_an_Unequal_World.pdf

Smh. Zero tolerance is zero thinking is zero humanity. Common-sense by discretion must prevail where 8+ million are locked-up, the most overcriminalized country with the most prisoner per-capita in the world, save Seychelles. As John Oliver pointed out, DA's are elected based on "tough on crime" nonsense, have all of the power to decide whom/how to prosecute and there aren't enough public defenders so the majority of people plead guilty, even if they're innocent, because they have no hope of fighting a system that is broken and doesn't provide either a speedy trial or adequate representation.

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.

I sympathize with them but a simple answer to your question is , leaving the city is an option. Technically people have options to leave the city if the cost of living is high enough that they cannot afford rent. This will be the first argument against the "law is wrong".

I personally believe based on how US laws and public opinion works is that its better for them to leave the city and start somewhere the cost of living is not that high and they can get some kind of job (even if it is low paying).

leaving the city is an option.

I travelled to San Diego when I was first homeless because that's where the soup kitchens and homeless services are. It was possible to eat every day.

Most small towns don't have the resources to provide such services to the homeless. If you are completely indigent, the nearest big city is your best bet for finding some kind of help.

We need to fix affordable housing and health care in the US. Those two things would go a long way towards reducing this issue.

But no one wants to do that and most Americans see zero connection between the lack of affordable housing and the high numbers of homeless people, which just flabbergasts me.

My worry with affordable housing in cities is that either it will turn into a corruption filed lottery system or they will turn into modern ghettoes. I think it's better to turn away homeless people away from cities and into places where cost of living is more reasonable and they can find some kind of job to bootstrap off (not by law but through incentives ). Yes, I agree most of the homeless services being in the city is a problem, which funnels people towards the city, where chances of getting affordable housing is becoming slim day by day.

The problem with your theory is the cities are where the jobs are, plus affordable housing is in general short supply.

I find it very frustrating to keep running into comments like this on HN. I was willing to go almost anywhere in the Western US to get off the street. There are damn few places that aren't senior housing, aren't trailers, aren't the absolute muddle of nowhere where it would be along drive to even get groceries (thereby adding to the expense of living there because you need a car, etc) and can be had for under $500 per month.

Even small towns aren't that cheap.

I would like to actively foster the development of online incomes in small towns and rural areas. The internet savvy people are also mostly in the big cities and many rural places lack high speed internet.

If we could somehow supply good internet to such areas and help people earn money online so that the lack of good jobs isn't an issue, now you are talking about a real solution. But most of the people saying that homeless folks need to just move someplace cheap aren't talking about helping them make money online. They are just ignoring the fact that these people simply cannot currently get their needs met at all outside of the big city and are being arrested for being in the big city where services are.

I run a bunch of websites. I can't get Patreon support sufficient to let me develop them full time. I didn't get the economic development job I applied for last December.

I think I have actual workable solutions that don't just throw people to the wolves. And I can't get traction because basically no one really wants this solved. They just want to blame the homeless and not actually work on real solutions.

There is a nationwide shortage of affordable housing. This is not unique to big cities. So sending people to small towns with no services and poor job prospects isn't currently a fix. And it is starting to make me spit nails to hear that.

Meanwhile, tech giants want to eliminate like 80 percent of jobs and replace it with UBI. Then articles that state that in the first paragraph fail to actually explore this dystopian vision and, instead, wax eloquent about how do gooder social workers will live so much better with UBI to supplement their underpaid job. They don't actually get into what life looks like if we hand everyone $10k annually with no hope of ever having a job again because robots are doing everything.

And people wonder why I'm suicidal so much of the time. Good god.

I am not an American citizen so I don't know about your experience in US, but I have seen similar problems in my own country (A developing country 3rd world) where building subsidized housing has only increased the problem. It created ghettoes with lack of ammenties and people clumped in together (Because the government will want to save money and I bet they will do a shody job at building these place).

This has caused a lot of people to start living in a very small area which has severely strained the resources of the city (water , sewage, garbage ).

This also created a feedback loop as since cities has more opportunities and now you can find housing on the cheap, more and more people start coming to the city even if they cannot afford living there.

Life is hard and it becomes harder when you are homeless and I am not undermining this. But your solution is a tried and tested solution which didn't work before and there is no indication that it will work in the future.

Gist : There is no point in concentrating all resources in the same place.

You are making a lot of assumptions about my remarks that are inaccurate.

First, when I say affordable housing, I don't mean "government owned or subsidized projects built to serve poor people." I mean that as literally as can be meant: Housing that is affordable for a certain subset of the population.

Historically, the US had a lot of small, cheap rentals and those have largely gone away. For example:

The United States saw a decrease in single room occupancy housing during the period of 1960s and 1970s urban decay. For example, in Chicago 81% of the SRO housing stock disappeared between 1960 and 1980.


Second, I'm not suggesting building affordable housing only in big cities. The entire US needs additional affordable housing.

For every 100 families living in poverty on the West Coast, there are no more than 30 affordable homes


The history here is that we had savings rates that exceeded 50% some years during WW2, the soldiers came home and had money in the bank and also help from the government to buy housing as part of their benefits. So the ladies with factory jobs were asked to give up their factory jobs and go home so men could have jobs and many of them were happy to do that (though not all) and this is where we get the Baby Boomer generation.

It is a historical anomaly where the US had an extremely large middle class population with working class values that had survived the Great Depression and they were thrilled to be homeowners. And houses built in the 1950s were typically 1200 sq ft and held an average of like 4.5 people, IIRC. Today, the average new home in the US is over 2400 sq ft and holds one less person on average than in the 1950s.

Meanwhile, we have a terrible homeless problem and single young people are expected to rent a two or three bedroom place designed for a nuclear family and get roommates. We used to have SROs, boarding houses and other things as a common market based option for young people just starting out who weren't married, didn't have kids and didn't have a lot of money. We have largely eliminated those options and then wonder why there is a problem.

The 1950s probably saw Peak Nuclear Family (tm) for the US. All of our housing policies and financing mechanisms are rooted in that era and it is like a ghost continuing to haunt and terrorize us. Meanwhile, our demographics have diverged and we have more single young people, single parents, and childless couples and virtually none of our housing is designed for these people. It is almost all designed for a breadwinner dad, a homemaker mom and 2.5 kids to live happily ever after in, never mind that this is practically a myth today.

I'm well aware that building poverty housing has the potential to deepen the problem. I'm absolutely not talking about building poverty housing. I'm talking about building stuff that isn't insanely oversized, isn't aimed at a small subset of the population -- the mythical old fashioned nuclear family with a stay at home mom that is nearly extinct -- and isn't insanely expensive.

That's vastly different from what you are talking about.

And your "I'm not American, but I know better than you do what is best for your country, never mind that I am completely misinterpreting your statements" isn't any more pleasant to deal with than when upper class Americans tell me that we should ship all the poor people to rural hell holes or something.

I don't get your point, you want affordable housing but without government intervention ??

The housing market is same everywhere in the world and generally suited towards nuclear family because they are ideal tenants (in terms of money and stability).

Homeless ness is a global problem that exists everywhere in the world. Its not a US only problem. You can dismiss my opinion as "oh this foreign guy , he knows shit about my country and he is touting opinion like he is some genius", but you are trying to overreaching in your "if only the housing market was perfect" solution.

And rural America is not a hell hole. You need to see real hell holes in life my friend. Good for you , you came out of poverty to get a stable job but please don't undermine others peoples experiences judging them from a narrow lens.

Government intervention and government projects are not the same thing.

But I don't really see any point in trying to hash this out further.

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?

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.

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.

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.

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

Most people on the street have either a medical issue or mental health issue. Some of the drugs used to treat mental health issues have terrible, terrible side effects. Some people with those conditions would rather drink or use street drugs because the side effects are less objectionable.

If your mental health issues have utterly ruined your life to the point where you are homeless, that fact can help make you suicidal. To the degree that mental health issues can lead to suicide, I think it is reasonable to suggest they can be deadly.

Alcohol also kills germs. I loathe alcohol. I had a nightcap pretty much daily for about a year while doctors acted like I was crazy and failed to figure out how to treat my condition. I began getting better. I stopped drinking alcohol when I found other treatments that worked better.

I'm convinced I would have died had I not consumed alcohol for a year.

I knew someone briefly with a mental health issue who lived in fear of winding up homeless. She also drank alcohol very heavily for a time and felt enormous guilt about it. But she had surgery for something at some point and when they opened her up, they discovered some badly infected organ. They removed it and marveled at the fact that she wasn't dead.

I think her heavy drinking saved her life. After that surgery, she was able to get clean and sober, in spite of her mental health diagnosis.

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?

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.

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.

I don't think putting homeless people in jail is intended to help them.

That's an understatement. Locking people away simply because others don't like them sounds a lot like, I don't know, a non-Godwin's law exception.

It's disturbing when people even rhetorically-suggest breaking with common decency and dogwhistle encourage strong-man fascism.

> 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

Ok, but keep in mind that many of them probably turned to these as an escape from the reality of their condition and are now addicted. Perhaps a better thing to do would be to help rehabilitate them instead of vilifying them as addicts?

And if they aren’t interested in rehabilitation?

Pay for their lodging and food, as long as they never leave the building, and force them to be very close roommates with gang members?

Basically the question is: what do you do with a crazy person, or someone who has relegated themselves to squalor?

The answer for both is that we continue to try to rehabilitate. That means not just throwing them in a hole. A simple example would be to take the money we spend on incarcerating them and spend it on multifaceted programs.

Prison should not be a panacea. Reminder: the US incarcerates more people than the next two biggest encarcerating countries combined, even though our population is 1/5th the size. Either our people are the scum of the earth, or we just find locking people up an acceptable solution to most problems.

Not being interested in rehabilitation isn't an excuse to let folks starve on the streets. Go ahead and make sure folks have a room with a lockable door and food available to them. Keep folks as safe and healthy as possible. Keep offering ways to improve life.

What business did you have had visiting all (100+) county and city jails in California? Don't public defenders usually work for a county office? What would an LA County public defender be doing visiting a Yolo County jail?


Your comments in this thread have been breaking the site guidelines. Would you please review https://news.ycombinator.com/newsguidelines.html and follow the rules when posting here?

That means not calling names in arguments, not using the site for ideological battle (regardless of your ideology), and not attacking your fellow users (regardless of how wrong they are or you think they are).

I believe people are better off when they have shelter, food, healthcare, access to healthcare facilities, and so on. In addition, those lodging should be secure so the person's belongings are safe when they go about their day. I'd like people to be able to store and cook food safely as well.

This doesn't really describe jail. Jail is designed to punish people, and all too often, to hold people suspected of crimes. We have rape jokes about jails. Access to healthcare seems to be missing, especially if you have issues with mental health. You really cannot have belongings: For someone homeless, that could mean they don't have belongings later on, even if they were only held for a short time. If you happen to be a homeless person that works (yes, they exist), it also means you probably just lost your job.

If that facility is a jail, then possibly yes.

I think what they meant was in case none of those are available, they shouldn't be penalized.

False dichotomy. Could make a similar (false) comparison between killing them outright, and letting them continue suffering as they do.

Are there no prisons? Are there no workhouses?

Shelters only have so many beds, not to mention many are already overcrowded and rife with violence

If poverty is no excuse for breaking the rules then wealth should not be either...

But that is not how it works in a land where a bunch of bankers can break all of the rules of sound lending and then demand that the government relieve them of them of the consequences of their actions and suffer few or no penalties. Literally the only people who have gone to jail over the 2008 mortgage banking crisis were whistleblowers who called out malfeasance on the part of their employers.

We can start jailing homeless people _after_ the CEO of Wells Fargo is in jail.

Your alignment: Lawful Neutral

Your desire to organize society according to simple, elegant and absolute rules is understandable - it is in fact the quintessential engineer's mindset.

But society is not a microprocessor, or a factory, or even a neural net. It's far, far more complicated than any of those things, and can't be governed by the same approach.

This is why things like empathy, transgression, forgiveness, and rebellion exist within a society but not within a codebase. Trying to eliminate those things from a society is effectively trying to collapse the complexity: to dramatically simplify the system in order to make it possible to manage problems through absolute rules.

While this is an understandable approach to an engineering problem, I rather enjoy the beautiful complexity of society, and would hate to see you have your way with it.

Nuance, thank you. Black & white thinking makes me suspect a person maybe either fresh off the turnip truck, tending towards dramatic narcissistic or never slept rough. The world is only easy and mertiocratic for the relatively rich.

In real life, the very poor are put-upon, berated, judged, harassed, kicked and even murdered for the crime of being poor.

You do realize that the Anatole France quote is satire, no?

The point is that the law already places a greater burden for the poor to comply than the rich. The rich don't need to sleep under bridges or steal bread, the poor can't help it, therefore the law itself unjustly discriminates against the poor.

Friend, everything in this world can be said to discriminate against the poor. What do you propose? That being poor legitimizes breaking the rules that protect all of us?

I propose that shelters are fare cheaper than jails.

If you are threatened by someone sleeping on the streets you should seek help.

I would think anyone who observes society carefully could see that homelessness does not yield good things from people in that circumstance.

Yes, from the police. When someone sleeping on the streets shouts threats at you, they might be willing to go through with them.

Same for people not sleeping on the streets, so maybe the threatening should be the thing that's illegal.

Everyone in a first world country should by common decency, have access to clean water, food and a place to sleep.

If your society is failing to provide this, then it's a failure of society, not a failure of the individual.

If society does provide for it in a way that is adequate, humane, and without severe inconvenience then sure, prosecution can be an option (right after providing a humane option of a place to sleep). However, I doubt this is the case.

If your laws don't provide for humane treatment of people in your society, then you need new laws.

And staying in jail... well anyone that think that's an adequate place to sleep is confusing a place that's meant for punishment vs a place that treats people humanely and offers them shelter.

This is not the failure of the society, this is a decision collectively made by the society. Clean water , food and place to sleep has to be paid by the same society and largely US society through its law makers have made the decision that they don't want to pay for these things (they still pay for these up-to some limit).

It's a decision. Every country is different, for better or for worse.

What is someone supposed to do if they are tired or need to use the restroom but do not have the means to get a hotel?

I would rather sleep in my car on the side of the road and get fined than continue driving in a sleep-deprived state. I usually get away with using restrooms in restaurants when I am out, but if it was refused and there were no public restrooms, you bet I would find an alley.

Society's rules do not mean as much when there is no viable alternative.

I think the issue is deeper than just 'no viable alternative'. should you not receive a parking ticket because you couldn't find a parking spot?

Should homeless people be able to sleep in your yard? if so, do they need to provide proof there was no viable alternative? its inhumane to force them to sleep outside, shouldnt you be forced to let them into your house? does being homeless give them a special right to violate your private property? why cant anyone sleep in your yard?

the issue is complex, but I do not agree with "Society's rules do not mean as much when there is no viable alternative."

This is just a "slippery slope" argument. If you do not give people a place to use the restroom, do not be surprised when they use the restroom. If people do not have a place to sleep, do not be surprised that they still need to sleep. No, you do not need to let them shit in your mouth or sleep with your wife. No one is arguing to abolish private property and give it to homeless. People are saying that until there is an alternative, homeless people need a place to sleep and use the restroom, and that place is likely going to be public property such as parks.

Let's say your friend is shot and you are driving them to the hospital. There is no parking at the hospital. You need to park. Will you just say "oh well" and head home. Sorry buddy, no parking. Nope, you need to park. You will do it illegally. It is like that. Not that we don't get parking tickets because we parked on the sidewalk to go to the mall.

its not a sloppery slope argument. imo, the slope is already slipped if you are claiming they can sleep anywhere just because they can't find a place to sleep.

your counter example is not quite there. I dont think anyone is saying they can't sleep in ALL public places, just that there are limitations on where they can sleep in public.

for instance, is it OK for you to park in front of a hospital in such a way that it blocks ambulances from entering? no.

Actually yes, the law being overturned said it was illegal to sleep in public places anywhere in the city. What kind of limitations on where people can sleep are you imagining?

Nobody has to own a car. Everybody has to sleep somewhere. If it’s illegal to sleep in a public place then it’s effectively illegal for the sufficiently poor to exist.

I sure wish I got to sleep on that bench, but that homeless man took it before me, so guess I'll just have to slip onto my memory foam mattress for one more night.

> This is full of holes.

Well it’s a ninth circuit decision, and a 2-1 at that...

What are “society’s rules”? Laws? Laws are arbitrary and regularly criminalize particular demographics or even singular entities for whatever reason to enforce an agenda.

Yeah, those stupid "society's rules" that give us the freedom to not be afraid to walk around without being armed, or worry about your house getting broken into. Such pesky laws that are so arbitrary and infringing on people's demographics.

You're being downvoted but you're making a valid point. The rich and poor alike are both restrained from robbing others for money, yet the rich are unlikely to attack you on the street because they have no need to. It sucks to be poor, but it sucks even worse to be poor in a lawless society.

You are conflating a whole lot of things that are barely related to this specific case, which is about a very specific situation: criminalizing sleeping on public property when shelters are full. What would you have these people do, exactly, to avoid this punishment?

What exactly do you propose? That we round up all the homeless and put them in jail? If we're going to house and feed them anyway, why not do it in a facility where they can leave at some point when they get on their feet?

Speaking as one who was homeless for several years, yes, you do live according to a different set of rules when you get poor enough (or rich enough, for that matter.)

Society's rules are different from society's laws.

There's a place in Vancouver where you can walk around naked and buy dope and booze in public and no one will blink. Some people know about it, some don't, the police don't care.

Law is a fiction, a tool we use to manage human wickedness (good folk need no law.) Sometimes it works and sometimes it's stupid and vicious.

Throwing people in jail for having no better option than to sleep in the street, instead of giving them a house like Utah does, in this country, this richest of nations, is pathetic, and should not be lawful.

You should rejoice: The court declared the law itself unjust. So you are also now free to sleep outside in the winter (when no shelter has vacancies).

This is full of holes.

Self-reference? If so, agreed. The biggest hole in your comment is that in America, at least, it's possible for a law to be declared invalid in some contexts (e.g. sleeping on the street) but not others (e.g. urinating on it). You dance around this somewhat in your comment, so it's curious you take such a binary view.

I think you are correct. It’s about where you draw the line. The line should be adjusted to account for this. What that looks like I don’t know but I agree even application of laws when they exist is only just.


Would you please stop breaking the site guidelines by going on about downvotes like this? It's off topic, and in the rules for good reason:


One of, unfortunately, not many comments based on rationale and not on feelings. Feelings do no good to society when we are policymaking. Feelings are so easy to exploit and overuse in modern day of public “platforms”, available to all. Law obedience should be the first and the main message we send, while worth mentioning that as fortunate citizens in developed society we have the power to vote and self-correct.

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.

The overwhelming majority of appellate decisions never reach the supreme court (because if they did, there'd be no point to having an appellate level at all if the high court needed to review everything). It's true that the 9th circuit is the most reversed. It's not true that any given decision is likely to be overturned.

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.

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

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...

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...

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)

So.... no examples.

It may not even survive en banc.

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...

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.

> 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 [2] https://endhomelessness.org/homelessness-in-america/homeless...

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.

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

I'm sorry, I don't mean to be uncivil but I just straight up do not believe you (about people wanting to go to jail.) I was homeless for nearly five years, I've met a lot of homeless people, I've never ever encountered anyone who wanted to go to jail, "nice" or otherwise. Even the crazy folks would rather be crazy free. I guess it's possible that everybody who really wanted to be in jail found a way to get there leaving only the really committed "drug addicts and drunks" out on the street?

In any event, you are right about one thing:

> 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.

If you're not a mess most folks are actually pretty decent about cutting you some slack, I can tell you that from personal experience. Also, if you do encounter Mrs. Grundy, imagine that call to the police, "He's sleeping!" It lacks urgency. (Unless you're sleeping in a stupid place, like an upscale neighborhood.)

It's like you say. There's a place a few blocks from my house where some people have been sleeping occasionally, and it would be fine but they are starting to leave trash and stuff. That's what's going to cause problems, not the actual camping.

>Orange is the New Black is far more representative of your typical incarceration facility.

Ugh, maybe for a Federal facility.

City and county jails are dangerous shitholes in many (most?) places in the US.

The City of Santa Cruz has banned sleeping in public, and actively enforced it when I was last regularly there a few years ago. Enforcement has gotten much more agressive over the last decade, as Santa Cruz became more affluent.

If you really used to be a public defender, the sorry state of our justice system makes a tiny bit more sense now.

I mean... Just the claim that, quote:

> The homeless aren't prosecuted for sleeping outside

On an article titled:

> Prosecuting homeless for sleeping outside may violate U.S. Constitution

is quite a feat!

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.

In Norway or Sweden maybe, not in the US.

3 Square meals a day?! Forget the piss poor quality and lousy portions, they’re not serving three of anything


Inmates at the Gordon County Jail in Calhoun, Ga. — according to a preliminary investigation by human rights attorneys last fall — are starving. The two meals a day weren't enough to sustain them, and some reportedly resorted to eating toothpaste and toilet paper. Inmates at the Montgomery County Jail in New York alleged that meager portions led to increased violence among the inmates; one inmate lost 90 pounds in less than six months. And a group of prisoners at the Schuylkill County Prison in Pennsylvania filed a federal civil rights lawsuit claiming the portions they received are “not even enough to fill a 5-year-old child.”


Then again maybe less food is better than...

In August, the Detroit Free Press reported that a prison kitchen worker was fired for refusing to serve rotten potatoes. You can find nightmarish stories about maggots in national outlets like U.S.A. Today.

They do get clothes, of course they tend to already have clothes, but “clean dedicated place to sleep” is just... what year do you think it is? The prison system is very overcrowded, and regional jails are the worst. Getting banged up for a few days on a misdemeanor isn’t putting you in a prison, but a shared cell in a local jail. Plus, a huge number of homeless people are memtallly ill, and being thrown into a chaotic situation with a bunch of offenders of varying severity is not the best outcome. You may not give a toss about homeless people, you may want them in prison, but stop pretending that it’s good for them.

Plus it’s wasteful and expensive, a burden of non-violent people in an already overcrowded system, and does nothing to solve the underlying problems. The last thing we need is to further bloat our correctional system.

We're not talking about the Deep South, which doesn't have a homeless problem.

We're talking about the West Coast, which has good weather year round and clean prison facilities. Unlike 99.999% of HN, I've actually visited every jail, prison, and mental hospital in CA. I've seen the conditions first hand. They're not what you see in movies--they're what you see in Orange is the New Black, i.e., clean and relatively comfortable. Also, mentally ill prisoners get transferred--almost immediately--to state mental hospitals.

I agree that bloating the correctional system is a problem--but I would rather use prisons to house the homeless than to house otherwise employed and housed nonviolent offenders.

> We're not talking about the Deep South, which doesn't have a homeless problem.

Wut? Atlanta has a massive homeless population. So do all of the Florida metros, Tampa was making national headlines last year for arresting people for not obtaining onerous permits to feed the homeless...

No, we're talking about Boise, Idaho.

Also, suggesting it's fine to just imprison people because they'd have it better in prison anyway... I'm speechless.

I'm not arguing that it's fine to imprison people just because they'd be better off-you're the one saying that.

I'm saying that it's not cruel or unusual to send someone to jail as a punishment for committing a crime if they were living on the streets. It is by definition not cruel because they're living situation would be better locked up than free. It is by definition not unusual because incarceration is the standard punishment for most crimes.

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.

Please explain what that meant if it wasn’t an argument that they’re better off behind bars. Try not to argue in the alternative, because Christ almighty is that boring.

I think he is trying to say is that this is not a cruel and unusual punishment. Its not unusual because putting people in jail is a usual affair in US. Now in terms of cruelty, the only cruel thing according to him about landing up in jail is your right to freedom is taken from you. Even though I agree this is a big punishment but taking your freedom was never considered a cruel punishment even if the crime committed was small.

Aside from freedom, he believes homeless are well off in prison in certain states rather than being on the streets.

Personally, my only perception of US prison system if through movies, so I cannot comment on it. But I have personally seen homeless people committing small crimes in developing countries to land in prison for a month or 2 in case the weather becomes extreme outside ( Rains , snowfall etc).

I was specifically responding to this:

I'm not arguing that it's fine to imprison people just because they'd be better off-you're the one saying that.

When in fact he’s been saying just that, repeatedly and vociferously. At this point though I’m not seeing a lot of gold at the end of this rainbow, just more hypocrisy and questionable claims, so I’m out.

Why are you repeatedly advocating for jailing the homeless in this thread? It's totally unethical and having imprisonment records now on innocent persons would impede any future job prospects to pull them out of homelessness. This is the wrong approach in all circumstances.

Wouldn't providing shelters be cheaper than prison? Prison adds a lot of security overhead you don't need for homeless people.

NIMBY attacks those ideas pretty quick. I have seen tiny home homeless projects get killed because no one wants that around them.

> 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.

Land of the free. Christians.

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.

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.

> 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.

> 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.

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.

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.

It's difficult to talk a bus driver into giving you a free ride into Seattle.

It's basically impossible to talk a bus driver into giving you a free ride out of Seattle.

That's part of why I included on a local scale. If your town provides more amenities and generally treats the homeless population better than the surrounding areas, of course homeless people are going to move to it. Which might be good for the homeless, but it's kind of counterproductive in terms of the original problem statement - "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."

So you're saying a regional, or even statewide approach is needed?

I'm saying that an approach that covers an area large enough that you cannot easily traverse it has a chance of working, and smaller programs will always have to contend with the "importing more homeless" problem. IMO, that would have to be the entire country - getting a greyhound from Las Vegas to Los Angeles isn't out of reach, for example. But a statewide approach would still be less affected by this than a citywide one, which itself would be better than something on the scale of a neighborhood.

And even then, that's to have a chance. I don't think that "give a ton of benefits to the homeless" is a surefire solution to reducing homelessness. The Utah approach (fix the "homeless" part by giving them a home, then fix everything else) might work, but it requires a bit more societal trust than a lot of the country has.

Or we could make society work better instead.

But that would require us to genuinely respect and care about all of our people and it comes with no opportunity to play hero and expect people with pathetic lives to grovel before you in gratitude.

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