Can Cities Punish People for Being Homeless Alcoholics?
Cities have often resorted to criminal sanctions in an effort to prevent homeless people from panhandling, sleeping in parks, or creating nuisances. Those efforts have met with mixed success as courts have struggled with the conflict between a city’s desire to protect its residents (or its image) and the rights of the homeless.
A recently filed lawsuit in Roanoke, Virginia contends that the city is improperly targeting homeless alcoholics for criminal punishment. The lawsuit is one of many that have challenged the use of the criminal justice system as a solution to the problem of homelessness.
While the distinction is not clearly defined, the United States Supreme Court has drawn a line between permissible punishment for prohibited conduct and impermissible punishment because of a person’s status. In the first case to draw that distinction, the Supreme Court held that an individual can be prosecuted for possessing or using illicit drugs but cannot be punished for being a drug addict.
Applying similar reasoning, the Court subsequently concluded that, while it may be impermissible to criminalize the status of being a chronic alcoholic, states are entitled to enforce laws against public drunkenness. The Court recognized that alcoholism may lead to public drunkenness, but maintained the distinction between laws that punish a person’s status and laws that punish conduct.
The distinction calls into question laws that appear to punish either the status of being an alcoholic or the status of being homeless. Attempts to criminalize vagrancy and loitering have not survived the Supreme Court’s scrutiny. The freedom to remain peacefully in a public place is generally part of an individual’s constitutionally protected right to liberty, and laws that broadly restrict that freedom, when the arrested individual has not behaved disruptively, have been invalidated when they do not contain standards that eliminate the threat of arbitrary enforcement.
Virginia’s Interdiction Statute
Virginia's law authorizes a court to enter an “interdiction order” that prohibits the sale of alcohol to anyone who “has shown himself to be an habitual drunkard.” A related law provides that an interdicted person commits a misdemeanor by purchasing, possessing, or consuming an alcoholic beverage, or by being drunk in a public place. More than 4,700 interdicted persons have been convicted of that misdemeanor during the past ten years.
The statute provides no clear standard for determining whether someone is a habitual drunkard. The order can be entered by default if people accused of being habitual drunkards do not appear at the interdiction hearing. Since interdiction orders are entered in civil proceedings, the accused are not provided with an attorney. Once they are subject to an interdiction order, however, they can be criminally prosecuted for actions that would not be crimes in the absence of their designation as habitual drunkards.
The Legal Aid Justice Center has filed a class action lawsuit against prosecutors who use the interdiction statute to target homeless alcoholics, whether or not they are drunk, simply because they possess alcohol. The suit asserts that the law’s application to homeless alcoholics violates their constitutional rights, both because the law creates an impermissible status crime and because, like vagrancy and loitering statutes, the law encourages arbitrary enforcement.
To the extent that the lawsuit contends that prosecutors are punishing the homeless for the status of being alcoholics, prosecutors will likely contend that homeless alcoholics are prosecuted for their conduct (possessing alcohol), not for their alcoholism. The suit, however, contends that criminalizing the purchase or possession of alcohol by “habitual drunkards” but not by other adults makes status, rather than conduct, the focus of the prosecutions.
The lawsuit alleges that homeless alcoholics have consistently been prosecuted simply because they are near open containers of alcohol or because they have the odor of an alcoholic beverage on their breath. The lawsuit suggests that for homeless alcoholics, an interdiction order is tantamount to a criminal conviction since their alcohol addiction makes it nearly inevitable that they will violate the law by possessing and consuming alcohol. The suit also alleges that making a standardless determination that someone is a habitual drunkard without providing that person with a lawyer and a jury trial violates the right to due process of law.
The suit describes the harms suffered by the named plaintiffs as a result of their frequent arrests. They lose what little property they possess every time they are incarcerated. Some have lost health benefits for which they must reapply after their release from jail. Incarceration also disrupts their schedule of medication and their attempts to achieve sobriety by attending treatment programs.
Cities and the Homeless
Many cities are under pressure to “do something” about their homeless populations. Visible poverty is arguably bad for tourism and may deter customers from visiting businesses in areas where homeless people congregate. One response is to provide more social services and shelters for the homeless, but cities often treat the problem of homelessness as a criminal justice issue.
The Virginia lawsuit is one of many legal challenges that advocates for the homeless have advanced against criminal laws that target people who have no permanent residence. Prohibitions against panhandling have been struck down on the ground that the right to free speech includes the right to ask strangers for contributions. An executive order in New York requiring the forced removal of homeless people from the street during cold weather is facing resistance on the ground that it criminalizes the status of being homeless.
The City of Venice Beach, California passed a law that prohibited using a car as living quarters. The City recently paid $1.1 million to settle a lawsuit filed on behalf of homeless residents who alleged that police were enforcing the law arbitrarily. In 2014, the Ninth Circuit Court of Appeals struck down a vaguely worded law that criminalized living in vehicles.
Los Angeles may be facing a lawsuit after passing a law that authorizes the police to dismantle tent cities and to confiscate and destroy property kept in parks. The law also makes it a misdemeanor to refuse to remove belongings (including backpacks) from public property.
Homelessness and alcoholism are deeply rooted problems. Their multiple causes are not easily remedied. Cities are finding that the criminal justice system is rarely suited to address complex social problems. The perception that cities are criminalizing homelessness triggers litigation that diverts resources from more effective solutions than jailing homeless people for behavior (such as drinking a beer or falling asleep on a park bench) that are not crimes when committed by people who have a place to live.