Recently in Martin v. City of Boise, 902 F.3d 1031 (9th Cir. 2018), the Ninth Circuit held that the Eighth Amendment’s Cruel and Unusual Punishment Clause prohibits criminalizing a person experiencing homelessness for sleeping in public when no sleeping space is practically available in a shelter.^[1]  Homelessness in America is a prevalent, growing, and evolving issue that has eluded efforts to eliminate it.  Viewing the problem through the lens of the Ninth Circuit’s opinion provides insight to how we can more successfully approach the issue by (1) rejecting stigmas associated with homelessness, (2) changing how we refer to people experiencing homelessness, and (3) taking a different approach than the one typically implemented by shelters.

Rejecting stigmas associated with homelessness enables effective problem solving

Often, homelessness issues go largely ignored because those attempting to solve the issues conflate the substantive merits of an issue with a stigma associated with homelessness.  The Ninth Circuit’s opinion successfully addresses the merits of a homelessness-related legal issue because it is uninfluenced by the typical stigmas associated with homelessness.  Throughout the whole opinion, the Court consciously avoids conflating the merits of the case with homelessness stigmas.  For example, the conclusion states that “as long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter.”^[2]

The recognition that people experiencing homelessness, and specifically those people living on the streets, do not choose to do so, is an important rejection of a stigma.  Had the Court decided the case under a stigma-based assumption it would have come to a conclusion similar to that of the District Court’s — when sleeping outdoors is only criminalized on nights where shelters do not report to be full, people experiencing homelessness are not constitutionally injured because this means they had a choice of sleeping indoors and it would not be cruel or unusual to punish someone for something they chose to do.^[3]  Concluding that people chose to sleep outdoors stems from analyzing an issue (why are people sleeping outdoors) and interpreting the present facts (that there never was a “single night when all three shelters in Boise called in to report they were simultaneously full”) with a stigma-based assumption in mind (that people experiencing homelessness are indolent) to come up with the false premise that people experiencing homelessness were too lazy to abide by shelter rules for housing and therefore chose to sleep outdoors.

However, the Court ignored stigmas associated with homelessness and did not rely on the same false premise that the District Court did.  The Court understood that if people could choose between sleeping in a shelter or on the street, laziness would not prevent them from sleeping in a shelter.  It therefore was able to identify the underlying reason as to why people were sleeping on the street and concluded that there was no choice in the matter.^[4]  By eliminating the stigma associated with homelessness we are better equipped to approach issues arising from the experience of homelessness.

This blog emphasizes the crucial first step to addressing homelessness issues: eliminating the stigma associated with homelessness.  To do this we must engage with the community of people experiencing homelessness.  Without engagement it is impossible to understand someone’s context and when you don’t fully understand someone’s context it is easy to adhere to a stigma and impose abstract, rigid expectations on a person’s behavior.^[5]  As social psychologist Devon Price stated, “If a person’s behavior doesn’t make sense to you, it is because you are missing a part of their context. It’s that simple.”^[6]  When society actively engages with the community of people experiencing homelessness we will understand their context.  This will allow us to approach a problem and reach its substantive merits instead of misinterpreting data by applying stigma-based assumptions.

Changing how we refer to people experiencing homelessness can reshape the way we approach the issue.

Although the Ninth Circuit approached the homelessness issue without attaching any of the typical stigmas associated with homelessness, by constantly using the term “homeless individuals” they missed an opportunity to reshape the way we think about homelessness.  This language is not unique to the Ninth Circuit’s opinion but is actually prevalent throughout society.  Last summer a shelter ran a “take-over” ad campaign on New York City subway cars where every ad in a given subway car read “support [our organization] as they work to feed the homeless.”^[7]  In a world where we are progressively becoming more conscious about the way we refer to individuals, it is surprising that we still call people experiencing homelessness “the homeless.”  The reason it is surprising is not because it is offensive but rather because it is inaccurate.  Homelessness is not something that defines an individual.  It is something that a person experiences during a fixed period of time.  Shifting the term we use from “the homeless” to “people experiencing homelessness” can help reshape the way we think about the issue and emphasize that we need to think of ways to solve a temporary problem in someone’s life rather than focusing on a way to deal with a permanent one.

Using a “searcher” approach instead of the “planner” approach typically implemented by shelters will lead to better results.

The Ninth Circuit’s opinion illuminates an important feature (which I will argue is a bug) of the current approach to alleviating issues related to homelessness.  It underscores the reality that many shelters implement what they believe is the best way to solve homelessness issues.  For example, take the two shelters run by the Boise Rescue Mission (“BRM”) that are discussed in the opinion.  Their policy states that after staying in a shelter for thirty consecutive nights, a person experiencing homelessness must leave for thirty days unless they join “the Discipleship Program.”^[8]  The Discipleship Program is an “intensive, Christ-based residential recovery program” of which “[r]eligious study is the very essence.”^[9]  But what statistics point to religious study as a mechanism to successfully alleviating homelessness problems?  Another example from the opinion is the River of Life shelter policy that “turns individuals away if they voluntarily leave the shelter before the seventeen day limit and then attempt to return within thirty days.^[10]  An individual who voluntarily leaves a BRM facility for any reason — perhaps because temporary shelter is available at Sanctuary, or with friends or family, or in a hotel — cannot immediately return to the shelter if circumstances change.”^[11]

These policies are what William Easterly refers to as a “planners” approach to solving poverty.^[12]  Planners look to solve poverty problems by taking a technical approach and, based on their own beliefs, implementing a solution.^[13]  A planner’s approach is implemented from the top.  Planners do not look at market feedback to alter or improve their approach.^[14]  Perhaps it would be more effective to approach homelessness issues as “searchers.”  Searchers approach an issue with an open mind and instead of determining what to supply, they try to determine what is in demand.^[15]  They are constantly in touch with the issues that they are trying to solve and therefore receive immense market feedback so that they can optimize their approach.^[16] 

The promise of the “searcher methodology” with regard to solving homelessness and its potential to be more effective than the current “planner methodology” is best exemplified by the Housing First approach.  Under the current approach of planners, permanent housing is given to people experiencing homelessness if they achieve prerequisite goals that the planners have decided will make people experiencing homelessness “ready” to sustain housing for the long term.^[17]  The Housing First approach instead looks to the problem it is trying to solve, i.e. homelessness, and interacts with the population to determine how long-term housing can be sustained successfully.

Housing First has found that achieving housing results in improvements in quality of life, physical and mental health, employment, and substance use.^[18]  This approach is rooted in the recognition that everyone is inherently “housing- ready.”^[19]  It therefore has low barrier admission policies to connect at-risk people with permanent housing rather than making them go through a number of prerequisite programs.^[20]  Furthermore, it employs rapid and streamlined entry into housing in order to eliminate the anxiety and uncertainty that a person experiencing homelessness may undergo during the housing application process.^[21]  In order to ensure stability, supportive services are offered but are not mandatory, because “exercising [choice] is likely to make a client more successful in remaining housed and improving their life.”^[22] Thus, the configuration of the housing and the supportive services are determined by consumer needs. ^[23]  

Upon receiving housing, tenants have full rights, legal protections and responsibilities.^[24] Some would frown upon immediately requiring a person who has recently experienced homelessness to pay any rent, but when individuals pays for a service, they are more likely to make their voices heard if they are not satisfied with it.^[25]  This further increases  tenant accountability – a key component missing in shelters today.^[26]  Housing First also establishes a tenant association or council to provide feedback, review program policies, and submit grievances or suggestions to ensure that the tenant’s voice is heard.^[27]

The Housing First approach attempts to initiate a process that will enable individuals to live stably without requiring them to graduate from a series of service programs.  It recognizes that housing is in demand, and that the solution to retaining housing should be sought out by those experiencing homelessness rather than having the solution planned for them.

The Housing First approach has been shown to be a successful and cost-efficient approach to solving homelessness. Studies have shown it to produce a permanent long-term housing rate of up to ninety-eight percent, and a cost savings of $31,545 per person in emergency services over two years.  The Housing First program has been shown to save $23,000 per person when compared to a shelter program.^[28]  By recognizing that the current approach to homelessness issues is a “planners” approach, and by eliminating the stigma associated with homelessness so that there is more interaction between people experiencing homelessness and others in their community, we will shift to the “searcher” approach and become more effective at solving the homelessness problem.

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[1] Martin v. City of Boise, 902 F.3d 1031, 1049 (9th Cir. 2018).

[2] Id. at 1048 (emphasis added).

[3] Id. at 1039–40.

[4] Id. at 1041(concluding that the shelter had policies, such as a consecutive night requirement, that would deny admission despite not being at full capacity).

[5] Devon Price, Laziness Does Not Exist, Medium (Jan. 19, 2019, 21:35), https://medium.com/@devonprice/laziness-does-not-exist-3af27e312d0.

[6] Id.

[7] Photograph of Ad Campaign, https://ibb.co/cYtK1V (last visited Nov. 16, 2018).

[8] Martin, 902 F.3d at 1037.

[9] Id.

[10] Id. at 1041.

[11] Id.

[12] William Easterly, Planners Versus Searchers in Foreign Aid, 23 Asian Dev. Rev. 1-35 (2006).

[13] Id. at 4.

[14] Id. at 3–4.

[15] Id. at 3.

[16] Id. at 3–4.

[17] See supra notes 8–11 and accompanying text.  Other perquisite goals include sobriety, treatment, and service participation.

[18] HUD Exch., Housing First in Permanent Supportive Housing 1, https://www.hudexchange.info/resources/documents/Housing-First-Permanent-Supportive-Housing-Brief.pdf (last visited Nov. 6, 2018).

[19] Id.

[20] Id. at 2.

[21] Id.

[22] Nat’l All. to End Homelessness, Fact Sheet: Housing First (2016), http://endhomelessness.org/wp-content/uploads/2016/04/housing-first-fact-sheet.pdf.

[23] HUD Exch., supra note 18.

[24] Id. at 2.

[25] Easterly, supra note 12, at 14–15.

[26] Id.

[27] HUD Exch., supra note 18, at 2.

[28] Nat’l All. to End Homelessness, supra note 22, at 2.