On the Criminalization of Homelessness
Thomas Dutcher, University of New Haven
"It was once said that the moral test of government is how that government treats those who are in the dawn of life … and those who are in the shadows of life—the sick, the needy and the handicapped" (Vice President Humphry as cited in Platt & Library of Congress, 1989). The importance of studying the criminalization of homelessness and persons experiencing homelessness, particularly through coercive care tactics, is revealed through Humphry’s words. He argues from a moralistic perspective, finding it to be the duty of the state in creating its legitimacy to protect vulnerable populations, such as persons experiencing homelessness. A Marxist interpretation of the importance of this topic would argue that capitalistic societies create "those without,” establishing perennial homelessness, and its criminalization will not change this fact (Lynch & Michalowski, 2010). From a human rights perspective, we find importance in examining how persons experiencing homelessness also perceive the police to be barriers to services they may be attempting to receive (Welsh & Abdel-Samad, 2018).
These few examples provide a small insight into the variety of ways to interpret the importance of examining criminalization related to the state of homelessness and the body of persons experiencing homelessness. Put simply, no matter the perspective, the study of the criminalization of homelessness is a necessary task because of the prevalence of flawed coercive care programming (Herring, Yarbrough, & Marie Alatorre, 2019; Robinson, 2019; Welsh & Abdel-Samad, 2018). To examine the importance of the topic more thoroughly, this paper will provide an examination of results of past research, along with the methodology, results, and implications of three recent studies. Based on the conclusions and implications of this research, this paper will end with its suggestions for further research.
Much macro- and micro-level research on homelessness and persons experiencing homelessness focuses on quality of life policing through the lens of critical criminology. Smith (1996) fundamentally altered how critical criminologists studied the policing of persons experiencing homelessness by defining quality of life policing as revanchism. His explanation of quality of life policing as attacking the right of persons experiencing homelessness to exist in society because they lack the societal requirement of a private home has been examined as both a global phenomenon and a city-specific trend (Barak & Bohm, 1989; Fyfe, Bannister, & Kearns, 2006; Mitchell, 2003). The majority of these early examinations of the criminalization of homelessness attempted to lay theoretical and methodological groundwork rather than test specific hypothesis and policies. Barak & Bohm (1989, p. 278), in a critique of positivist criminology, argues that a critical criminology approach must be taken to understand the historical labeling of homeless persons as a “dangerous class,” Barak and Bohm (1989) argue that to prevent homelessness, “Proactive and preventive approaches are needed; not reactive and repressive measures” (p. 284). It is this concept that emerges as the primary critique against quality of life policing. Mitchell (2003), in his historical analysis of the geography of public spaces interacting with modernity, adds to this groundwork for later empirical research by arguing that those experiencing homelessness must occupy public spaces in order to directly combat their marginalization in society.
Sharp (2014) built upon this work by testing the postindustrial policing hypothesis through examining arrest records of order maintenance offenses in 180 cities in America with a population of over 100,000 persons. While acknowledging that a longitudinal rather than snapshot design could lead to stronger results, she concluded that the criminalization of homelessness and the aggressive enforcement of that criminalization are correlated with order maintenance policing. Laniyonu (2018) would later re-test the postindustrial policing hypothesis by examining gentrification maps in New York City. Using spatial Durbin models, he found that persons experiencing homelessness in areas being gentrified were more likely to be issued move along orders, more likely to be issued citations for panhandling, and more likely to have 311 complaints registered against them by other persons residing in that area. While Laniyou (2018) and Sharp (2014) were more likely to use the term order maintenance policing, Laniyou (2018) acknowledges that this term is synonymous with quality of life policing. Both Sharp (2014) and Laniyou (2018) are in debt to the ideas laid forth by Smith (1996), as well as Waquant's (2009) work on the criminalization of poverty.
Inspired by Waquant’s (2009) analysis of how the neoliberal state requires a subset of its population to be marginalized, multiple studies have focused on the criminalization of associated acts that create a de-facto criminalization of homelessness. Anti-panhandling or begging laws, anti-rough sleeper laws, policies such as adversarial architecture, and anti-camping laws all have been examined as ways of criminalizing the status of homelessness without explicitly criminalizing the individual (Baker, 2009; Hallsworth & Stephenson, 2008; Iwamoto, 2007 Johnsen & Fitzpatrick, 2010). Hallsworth & Stephenson (2008), in comparing urban renewal programs in modern Great Britain and 1930’s Soviet Russia, conclude that vulnerable populations, such as persons experiencing homelessness, commonly have their modes of livelihood criminalized and thus are further marginalized by gentrification movements that use quality of life policing as a tool of geospatial renewal.
Iwamoto (2007), rather than examining the effects of criminalization, aimed to provide a detailed legal introduction into the arguments used by those in favor and those against the criminalization of homelessness. Most relevant to the discussion at hand is their decision to place quality of life policing firmly into the category of policies and arguments in favor of the criminalization of homelessness. Iwamoto (2007) argues that the primary driver behind the criminalization of homelessness is public intolerance toward persons experiencing homelessness. Similarly, Baker (2009) provides a historical analysis of justifications for policies that criminalize homelessness. Tracing the criminalization of homelessness through anti-begging legislation in the U.K., Baker (2009, p. 213) begins with the Anti Vagrancy Act of 1824. While arguing that historically the criminalization of homelessness had economic purposes, Baker (2009) attributes the widespread use of modern tactics and policies to broken windows theory.
Switching from historical analyses to qualitative research, Johnsen & Fitzpatrick (2010) conducted interviews with stakeholders (n = 27), service providers (n=82), and persons experiencing homelessness (n= 66) in the U.K., in order to examine if polices indicative of quality of life policing (street clearances, forced move along orders, anti-rough sleeping enforcement, and anti-begging enforcement) are coercive care or revanchism. They found that despite persons experiencing homelessness feeling persecuted by police, there was an overall acceptance on the behalf of service providers and stakeholders that quality of life policing strategies are necessary. The implications of this body of research can be summed simply as: quality of life policing and coercive care make the lives of persons experiencing homelessness worse.
While critical criminologists are more likely to criticize quality of life policing and the criminalization of activities associated with homelessness, this is not representative of all literature on the topic. Under the purview of broken windows theory, the criminalization of homelessness, persons experiencing homelessness, and activities associated with homelessness are all necessary to prevent societal decay and worse forms of crime (Berk & MacDonald, 2010; Kelling & Wilson, 1982). Berk & MacDonald (2010), in their evaluation of the Safer Cities Initiative in Los Angeles, conducted three time series counts of weekly crime reports within 5 police divisions. From this analysis, they found that clearing the “Skid Row” homeless encampment in the city was a key component to crime reduction in the central division, with no spillover effects (Berk & MacDonald, 2010 p. 836). Stuart (2014) performed an ethnographic analysis of police officers in the “Skid Row” district of Los Angeles, by shadowing police officers and recording their interactions with persons experiencing homelessness. The actions of police within this zone were found to support the idea that coercive care is necessary to “shepherd homeless people into rehabilitative programs” (Stuart, 2014 p. 1909). Alongside empirical research, organizations such as Housing Rights Watch advocate coercive care policies such as quality of life policing as a necessary reality in getting vulnerable populations help (Johnsen, Fitzpatrick, & Watts, 2014).
Research in favor of the criminalization of homelessness commonly implies that the means of coercive care policies are justified by their ends. Such research implies that persons experiencing homelessness are either unwilling or unable to seek services on their own, and decampment, move along orders, and citations for panhandling are all necessary to convince an individual to seek services within their community to change their life course. In line with broken windows theory, (Kelling and Wilson, 1984), this research finds that coercive care and quality of life policing is a necessary force to prevent crimes associated with homelessness from evolving into more serious crime.
Despite the mostly critical response to quality of life policing, the practice continues to be relied upon by police in cities across America when dealing with populations experiencing homelessness. As such, the topic of quality of life policing continues to be a primary focus of those seeking to examine the criminalization of homelessness. Taking inspiration from Smith (1996) and Sharp (2014), current research examines quality of life in relation to its effects on homelessness trends and the lives of persons experiencing homelessness (Herring, Yarbrough, & Marie Alatorre, 2019.; Robinson, 2019; Welsh & Abdel-Samad, 2018).
Quality of life policing and its effects are at the foundation of each of the studies analyzed in this section. Robinson (2019) examined the effects of recent decamping enforcement in Denver, juxtaposing the lives of persons experiencing homelessness under the new emphasis on decampment enforcement with the lives of those in two cities in Colorado not affected by the policy. Herring et al. (2019) took to identifying if certain policies within the scope of quality of life policing, such as sidewalk sweeps, criminalize and perpetuate homelessness without subjecting persons experiencing homelessness in San Francisco to incarceration. Finally, Welsh and Abdel-Samad (2018) examined quality of life policing tactics in San Diego to determine if such practices have an impact on the ability or desire of persons experiencing homelessness to seek out services.
Inspired by recent trends in academia, both Robinson (2019) and Herring et al. (2019) conducted mix-methods research, although heavily qualitative, combining surveys of persons experiencing homelessness with secondary data obtained from police departments and public records. Herring et al. (2019) worked with the San Francisco Coalition on Homelessness (COH), and Robinson (2019) worked in conjunction with Denver Homeless Out Loud to obtain qualitative data. Robinson (2019) formed cluster sites in which they conducted convenience sampling based on the working knowledge of Denver Homeless Out Loud. Similarly, the San Francisco based study began their purposeful sampling approach within various districts by using “COH'S organizational knowledge, honed over years of city-wide outreach, about where sheltered and unsheltered homeless people spend time" (Herring et al., 2019, p.5). This quote emphasizes COH’s role as a gatekeeper for the sampled population.
The survey instruments themselves covered similar themes, focusing on individual experiences with law enforcement. Both studies examined the concept of quality of life policing and the impact of the enforcement of crimes associated with homelessness at the individual level (Herring et al., 2019; Robinson, 2019). Unique among current research was the decision of Robinson (2019) to conduct surveys in 3 distinct cities. This study took this approach specifically to examine the effects of new anti-camping laws in Denver, relative to the rest of the state.
Unlike Robinson (2019) and Herring et al. (2019), Welsh and Abdel-Samad (2018) engaged in a purely qualitative approach in a very specific area. Whereas Robinson (2019) aimed to capture the experiences of persons experiencing homelessness across San Francisco, and Herring et al. (2019) looked at three cities (including Denver) Welsh and Adbel-Samad (2018) focused specifically on the East Village of San Diego. The decision to do so, while explained by the authors as a reasonable approach given this district tends to be where persons experiencing homelessness are more readily found, reflects the decision of the authors to use a convenience sampling approach by stopping "potential participants on the street" (Welsh & Abdel-Samad, 2018, p. 39)
The survey used by Welsh and Abdel-Samad (2018) focused heavily on persons experiencing homelessness and their interactions with law enforcement under quality of life policing strategies. Unlike the other two studies, the initial 25-question survey consisted primarily of close-ended Likert Scale questions. Similar to the study conducted by Herring et al. (2019), this study contained a sub-focus on a specific intervention strategy. However, where Herring et al. (2019) focused on a punitive policy (decampment), this study examined the effects of a program known as the San Diego Police Departments' Homeless Outreach Program (HOT) (Welsh & Abdel-Samad, 2018). Another unique aspect of this study was the decision to conduct focus groups (n= 23) and semi-structured interviews (n=20), in order to "dig deeper into several themes that emerged from the initial interviews” (Welsh & Abdel-Samad, 2018, p. 38).
While all three investigations surveyed persons experiencing homelessness with a focus on quality of policing, it is also important to note a shared limitation within their methodologies. Each study used individuals only briefly trained in administering a survey for data collection. An additional limitation, related to conducting qualitative research and mentioned in each of the three studies, was the potential for inaccuracy of information provided, due to the heavy daily stressors faced by persons experiencing homelessness. It must also be noted (in relation to data reliability) that these studies did not attempt to control for the presence mental illness within the populations surveyed.
Despite examining different phenomenon in separate cities through varying methodological approaches, quality of life policing was universally found to have negative impacts on persons currently experiencing homelessness. In Denver, the camping ban was identified by persons surveyed as making them feel less safe (53%), making their access to shelter more difficult (62%), and contributing to a loss of sleep (60%) (Robinson, 2019, p. 61). A majority of the sample was approached by police in the last six months, and an overwhelming majority of those approached, no matter the time of day, were forced to move along (Robinson, 2019, p. 59). Additionally, 89% of those surveyed still slept outside after the effect of the camping ban, showing that this attempt at coercive care has not achieved its care function (Robinson, 2019, p.59).
In San Francisco, the likelihood of persons experiencing homelessness being issued a move along order in the last year was examined based on living situation and race. This study found that those living in the street (88%) and those living in parks (90%) were most likely to be given a move along order, and persons of color were the most likely to be approached (84%), forced to move (75%), or receive a citation (70%) (Herring et al., pp. 8-9). In a similar light, the data from San Diego showed that those with more than five police contacts in a year were significantly less likely to trust police, view police as harassers, and have less confidence in the ability of police to ensure safety than were those with fewer than five contacts in a year (Welsh & Abdel-Samad, 2018, p. 40). In a further condemnation of coercive care, this latter study found that despite 90% of those surveyed reporting that they knew of HOT personnel and their mission, only 20% had received services through the program, and a majority of those who did not actually identified the program’s affiliation with San Diego police as a source of distrust, preventing them from seeking out services provided (Welsh & Abdel-Samad, 2018, p. 43).
Based upon these similar results, the studies examined came to a common and powerful implication. Stated simply, quality of life policing and coercive care make the lives of persons experiencing homelessness more difficult. Punitive strategies enacted toward persons currently experiencing homelessness make their daily lives harder and contribute to the perpetuation of their experience with extreme poverty. As the data from this research shows, not only does quality of life policing make persons experiencing homelessness hesitant to seek out services, it also strains their trust in both police and service agencies.
Concerning quality of life policing, the studies presented all concluded (with variation in the degree of criticality) that coercive care, contrary to the word care, makes life harder for persons currently experiencing homelessness. The most critical analysis of quality of life policing defined its practices as a "pervasive penalty – consistent punitive interactions with state officials that most often do not result in arrest and incarceration – interactions that nonetheless exact both material and psychological harm through the frequency and depth of orders and citations" (Herring et al., 2019, p. 16). These authors concluded that anti-homelessness ordinances deepened the poverty level of persons experiencing homelessness through fines, property seizure, and increased transience (Herring et al., 2019). Robinson (2019) also concluded that quality of life policing, because it does not combine policing with services offered, worsened the lives of those experiencing homelessness. Even when services are provided (such as HOT), quality of life policing is still found to be a hindrance to receiving services, rather than a mechanism of coercive care (Welsh & Abdel-Samad, 2018).
Conclusions and Implications
In sum, the recent literature concluded that coercive care strategies enacted by local law enforcement through quality of life policing are detrimental to the actions of service-oriented organizations. Fines and property loss experienced by persons experiencing homelessness represent a key issue with coercive care policies; their punitive tactics often worsen the situation rather than force an individual to change. An additional flaw in coercive care in criminal justice is that the care element is less trusted when paired with aggressive or punitive tactics. Welsh & Abdel-Samad (2018) suggested this policy implication based on their results showing a decrease in buy-in to the HOT program by individuals experiencing homelessness who had frequent run-ins with officers conducting quality of life policing. Robinson (2019) came to similar conclusions, citing the need to avoid justifying policies based on ideas unfaithful to their implementation effects.
One additional implication based upon past and current research is that persons experiencing homelessness represent a group whose civil rights are being attacked. Robinson (2019) alludes to this with his brief mention of states that currently have a Homeless Bill of Rights, while stating that more research is needed on whether such a statute prevents the issues we see with quality of life policing. All three recent studies reveal how the daily activities of surveyed populations are criminalized routinely, but do not specifically mention the term civil rights. However, data within these studies back up this idea of an attack on the civil rights of persons experiencing homelessness. While it may be hard to think about these individuals as a uniform group, when compared to other groups who continue to experience battles regarding full civil rights, the manner in which their lives has been criminalized justifies this comparison.
The idea that the civil rights of a person experiencing homelessness may be violated by quality of life policing also could present an interesting and new avenue for future research. Such research could continue to utilize mixed-methods, such as through historical analyses of civil rights complaints, cases, and rulings, in conjunction with survey data tracking lived and perceived violations by persons experiencing homelessness. In line with this civil rights-oriented approach, this paper echoes Robinson (2019) in his call for research on whether adopting a Homeless Bill of Rights has any effect on the daily wellbeing of persons experiencing homelessness. Currently, the only statewide versions of such a statue have been adopted by Rhode Island, Illinois, and Connecticut (National Coalition for the Homeless, 2019). Studies could be undertaken within states to track changes in policing related to such a statute, as well as to assess how such a statute performs.
Finally, Peacebuilding criminology, with its focus on human suffering, would be a suitable framework for future research. Peacemaking criminology often becomes operationalized as restorative justice policies, including (but not limited to) community policing programs that place an emphasis on fostering positive relationships between police and their communities (Pepinsky & Quinney, 1991). Victim offender mediation, a typical tool of peacemaking criminology, could be retooled to include mediations between officers that currently interact in an adversarial manner with persons experiencing homelessness and the individuals being affected by quality of life policing tactics, to create new policy that is beneficial for all members of society.
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 This paper will follow the recommendation of United States Interagency Council on Homelessness and refer to these same individuals, except when directly quoting the studies examined, as "persons experiencing homelessness."