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Abstract. In the face of affordable housing crises and increasingly visible homeless populations, many cities have enacted anti-homeless ordinances that regulate public behavior largely performed by homeless individuals. These ordinances prohibit necessary and life-sustaining behavior, such as sleeping and camping in public, for those without housing in cities that lack sufficient shelter space. Although the U.S. Supreme Court in the 1960s established the "status crimes" doctrine-which provides that the Eighth Amendment prohibits subjecting a person to criminal punishment based on her status-the Court has left unaddressed the full reach of that doctrine. Some advocates for homeless people have argued that the status crimes doctrine protects against the criminalization of conduct that homeless individuals have no choice but to perform in public. Lower courts and state courts considering constitutional challenges brought by these advocates have divided on the issue, left to conjure up limiting principles without guidance from the Court.
This Note argues that the status crimes doctrine and the substantive protections of the Eighth Amendment should extend to this kind of conduct It proposes a test to aid advocates, courts, and local legislators. In addition, it addresses standing and other procedural concerns that have plagued homeless plaintiffs seeking to challenge sleeping and camping bans.
Introduction
Everyone has basic human needs, including a place to sleep and food to eat. For people who are homeless, satisfying these basic needs may require breaking the law. Nationwide, there has been a proliferation of local regulations-often called "quality of life" or "anti-homeless" ordinances-that prohibit public conduct associated with being homeless, including sleeping, sitting, and sharing food.1 In California, approximately 500 anti-homeless ordinances have been passed in recent years.2 And across the country, the number of citywide camping bans increased by 69% from 2006 to 2016.3
Cities are responding to a perceived homelessness crisis. The number of homeless individuals in the United States increased slightly between 2016 and 2017, for the first time in seven years.4 Homelessness rates are directly correlated with rising housing costs and decreasing availability of affordable options in most metropolitan areas.5 "[U]pend[ing] the stereotypical view of people out on the streets as unemployed," some homeless individuals are more accurately described as the working poor who have been displaced by rising costs of living.6 In addition,...