It’s unconstitutional to ban the homeless from sleeping outside, the federal government says

Author: 

Emily Badger

Source: 

The Washington Post

Publication Date: 

August 13, 2015

We all need sleep, which is a fact of life but also a legally important point. Last week, the Department of Justice argued as much in a statement of interest it filed in a relatively obscure case in Boise, Idaho, that could impact how cities regulate and punish homelessness.

Boise, like many cities — the number of which has swelled since the recession — has an ordinance banning sleeping or camping in public places. But such laws, the DOJ says, effectively criminalize homelessness itself in situations where people simply have nowhere else to sleep. From the DOJ's filing:

When adequate shelter space exists, individuals have a choice about whether or not to sleep in public. However, when adequate shelter space does not exist, there is no meaningful distinction between the status of being homeless and the conduct of sleeping in public. Sleeping is a life-sustaining activity — i.e., it must occur at some time in some place. If a person literally has nowhere else to go, then enforcement of the anti-camping ordinance against that person criminalizes her for being homeless.

Such laws, the DOJ argues, violate the Eighth Amendment protections against cruel and unusual punishment, making them unconstitutional. By weighing in on this case, the DOJ's first foray in two decades into this still-unsettled area of law, the federal government is warning cities far beyond Boise and backing up federal goals to treat homelessness more humanely.

"It's huge," says Eric Tars, a senior attorney for the National Law Center on Homelessness & Poverty, which originally filed the lawsuit against Boise, alongside Idaho Legal Aid Services.

Tags: