Criminalizing Homelessness Through Abusive Preemption – White Paper by Marissa Roy

As the homelessness crisis continues to grow with the rising cost of living and little social safety net, local governments are on the front lines of responding. The “housing first” approach, emphasizing permanent supportive housing with voluntary support services, has shown promising success in several studies.5 Indeed, recent studies suggest that lack of affordable housing supply is one of the most significant factors aggravating homelessness. Struggling with lack of space and housing supply, some cities have piloted different short-term approaches to provide shelter and interim housing, such as renting or buying space in hotels and motels to house people; creating tiny home villages; or providing public space where individuals experiencing homelessness can camp, usually with access to sanitation and facilities.

However, one approach that has been both widely denounced as counter-productive and repeatedly held to be unconstitutional is the criminalization of homelessness. Criminalization of homelessness can take many forms—from banning public camping or sitting, sleeping, or storing personal property in public to prohibiting sleeping in cars—and leads to individuals experiencing homelessness facing arrest at 11 times the rate of people who are housed.

Despite this, some states have begun to use preemption to force localities to criminalize camping in public, taking local resources away from proven solutions that could address the root causes of homelessness. Rather than solve the crisis, this preemption exacerbates it by punishing people who can find shelter nowhere else. Further, this preemption forces cities to spend hundreds of thousands of dollars on incarcerating vulnerable populations rather than using that money to provide services or increase the supply of shelter or housing. As with so many forms of abusive preemption, this state intervention actually hinders the ability of local governments to tailor local solutions for local needs and harms the most vulnerable in our communities.

As part of the Local Solutions Support Center’s ongoing efforts to help local leaders understand and deploy their authority to address their communities’ needs, we have published this white paper from LSSC Legal Team Lead Marissa Roy to call attention to this alarming new preemption trend and begin the conversation with cities about fighting back. Special Thanks to Professor Nestor Davidson, Ben Winig, LiJia Gong, and D’Ana Pennington for their review and feedback of this paper.