A HOMELESS BILL OF RIGHTS (REVOLUTION)
Sara K. Rankin*
This Article examines an emerging movement so far
unexplored by legal scholarship: the proposal, and in some states,
the enactment of a Homeless Bill of Rights. This Article presents
these new laws as lightning rods for storied debates over positive
rights, social welfare rights, judicial enforceability, the separation
of powers, and the role of rights in social movements. In this
regard, homeless bills of rights present a compelling lens to reexamine these debates in the context of social movement
scholarship. Specifically, could these bills of rights be understood
as part of a new “rights revolution”? What conditions might
influence the impact of these new laws on the individual rights of
the homeless or the domiciled? On American rights culture and
consciousness?
The Article surveys current efforts to advance homeless bills of
rights across eight states and the U.S. territory of Puerto Rico and
evaluates these case studies from a social movement perspective.
Ultimately, the Article predicts that these new laws are more likely
to have an incremental social and normative impact than an
immediate legal impact. Even so, homeless bills of rights are a
critical, if small, step to advance the rights of one of the most
vulnerable segments of contemporary society.
Perhaps as
significantly, these new laws present an opportunity for domiciled
Americans to confront our collective, deeply-rooted biases against
the homeless.
*
Associate Professor of Lawyering Skills, Seattle University School of
Law.
J.D., New York University School of Law; M.Ed., Harvard Graduate
School of Education; B.A., University of Oregon.
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TABLE OF CONTENTS
INTRODUCTION……………………………………………………………
I. SOCIAL MOVEMENT THEORY AS CONTEXT………..………………
A. Rights Revolutions………………………………………….……..
B. Positive and Negative Rights………………………………
C. Judicially Enforceable and Aspirational Rights...................
II. HOMELESSNESS IN THE UNITED STATES AS CONTEXT……………….
A. Homeless and Hated…………………………………………
B. The Criminalization of Homelessness……………...............
C. The Cost of Homelessness………………….........................
III. CASE STUDIES: CURRENT EFFORTS TO ADVANCE HOMELESS
BILLS OF RIGHTS……………………………………………………….
A. Puerto Rico: Administrative Plans, Positive Rights
& the Vexing Lack of Judicial Enforceability..........................
B. Rhode Island: A Blueprint of Negative Rights……………….
1. Based on Rhode Island and passed:
Illinois and Connecticut.................................................
2. Based on Rhode Island and not yet passed:
Hawaii, Oregon, Vermont, and Missouri………………
C. California: No Holds Barred………………………………
IV.
LESSONS LEARNED FROM CASE STUDIES AND SOCIAL MOVEMENT THEORY…
A. Controversial Provisions (That May Be Worth Fighting For)
1. Provisions containing Positive Rights…………………
2. Language relating to Criminalization Measures………..
3. Language relating to Law Enforcement…………………
B. The Role of Public Perception and Education………………
C. The Trend of Judicial Enforceability ……………………….
D. The Impact of the Length of the Legislative Session…………
E. The Influence of Homeless Bills of Rights
on Constitutional Debates…………………………………...
CONCLUSION……………………………………………………………..
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INTRODUCTION
A new movement is afoot: in April 2012, Rhode Island passed
the mainland’s first Homeless Bill of Rights. State legislatures in
California, Hawaii, Illinois, Connecticut, Oregon, Vermont, and
Missouri quickly followed suit, introducing their own bills. So far,
Connecticut and Illinois have already joined Rhode Island with
freshly enacted homeless bills of rights. Other states are clamoring
to evaluate the prospects for such legislation.
The emergence of this new legislative tool raises questions.
What exactly is a homeless bill of rights? What is its purpose?
What are the differences and similarities across jurisdictions?
What types of rights are or should be covered? How, if at all, are
these rights different than those afforded to domiciled individuals?
What is the practical and legal impact of these bills? What might
account for the successful enactment of these bills in some
jurisdictions (or the lack of success in others)? Given the
increasing momentum at the state level, what might their influence
be at the federal level? These statutory innovations also animate
social movement theories concerning positive, negative, judicially
enforceable, and aspirational rights. Ultimately, these theories
could help to predict the influence and impact of these bills, both at
a state and national level.
This Article is the first to identify and analyze the new,
growing phenomenon of homeless bills of rights. Part I provides a
general context, overviewing social movement theories about
rights. This section surveys theories about the roles and relative
values of positive, negative, judicially enforceable, and purely
aspirational rights. This section also explores theories about the
role of non-judicial support structures, such as social movement
organizations, in rights revolutions. These considerations provide a
critical background for assessing homeless bills of rights. Part II
provides a specific context, both for these social movement
theories and for homeless bills of rights, by highlighting key issues
with homelessness in the United States. Part III surveys current
efforts to enact homeless bills of rights in eight states and Puerto
Rico. This section briefly describes the history, content, and status
of these bills and grafts them on a matrix of rights, depending on
whether and to what extent they provide for positive, negative,
judicially enforceable, or aspirational rights. Part IV draws several
key observations from these efforts and summarizes the potential
benefits and challenges of this new legislative tool, both from a
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practical and theoretical perspective. The Article concludes that
homeless bills of rights are more likely to have an incremental
social and normative impact than an immediate legal impact. Even
so, these new laws are an important step toward a long-overdue
rights revolution for one of America’s most vulnerable
populations. Perhaps as significantly, these new laws present an
opportunity for domiciled Americans to confront our persistent,
deeply-rooted biases against the homeless.
I.
SOCIAL MOVEMENT THEORY AS CONTEXT.
[Insert introduction and roadmap: purpose of a homeless bill
of rights, both short and long term. As detailed in Part __,
homeless bills of rights articulate a vibrant range of rights and
remedies. For example, some include the right to shelter and
health care, while others incorporate rights against discrimination
by employers or law enforcement officers. Some provide civil
remedies for those whose statutory rights have been violated by the
state; others vest the creation, implementation, and enforcement of
any rights in an administrative entity. Ultimate goal is the
improvement of the status quo. Change is always subversive to
some degree; transformation of what is to what should be.]
Do homeless bills of rights actually announce any new rights?
Or are they merely statutory reiterations of rights already held by
the homeless—and perhaps even by domiciled individuals? Put
another way, do these laws really help to advance the rights of
homeless?
The answer ultimately depends on one’s descriptive
perspective (how things are) and normative perspective (how
things should be). Social movements are an effort to naturalize a
normative vision: to make what should be into what is. Social
movement theory attempts to explain how these normative visions
become reality.
A. Rights Revolutions
The term “rights revolution” commonly refers to the perceived
historical shift of Supreme Court attention, away from an exclusive
focus on the property rights of businesses and wealthy individuals
and toward a focus on creating, expanding, and delineating the
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individual civil rights of ordinary citizens.1 The Supreme Court’s
role in the rights revolution left an indelible and dramatic mark on
American government, culture, and rights consciousness. Scholars
still vigorously debate the causes, propriety, and legacy of the
rights revolution.2 [Sources of debate- activist judiciary in a
democratic society3; center on the proper role of the judiciary in
legitimizing rights, and by extension, the necessity of judicial
enforcement for successful social movements.
But the “rights revolution” is not limited as a historical
concept. Studies of “the” rights revolution inform the potential for
“new rights revolutions” that may have an analogous impact on
rights consciousness in America.4 The interpretive lens of the
rights revolution is not solely retrospective; it is a compelling
prospective framework, particularly for segments of American
society that continue to suffer from systemic oppression and
discrimination. The homeless indisputably fall into this category,
and one aim of this Article is to use rights revolution frameworks
to assess the substantive and strategic potential of homeless bills of
rights.
A logical starting place is to gauge the necessary conditions for
a rights revolution and to determine whether these conditions
might exist in the context of homeless bills of rights. Scholars
generally describe the following four factors as conditions
necessary to a successful rights revolution: (1) a strong bill of
rights or other rights-based constitutions or charters; (2) an
independent, activist judiciary; and (3) a culture of rights
consciousness or a culture that frames disputes in terms of rights;
and (4) the presence of a “support structure for legal mobilization,
1
Charles R. Epp, The Rights Revolution: Lawyers, Activists, and Supreme
Courts in Comparative Perspective. Chicago: University of Chicago Press, 1998
at 2.
2
See, e.g., Realizing the Rights Revolution: Litigation and the American
State, Staszak (2013); Epp, After the Rights Revolution 1998: Reconceiving the
Regulatory State, Sunstein 1993; The Rights Revolution in the 20 th Century,
Tushnet 2009; Rights Revolution and Support Structures for Rights Advocacy,
Southworth;
3
Epp describes critiques of the judiciary’s role in the rights revolution at p.
4.
4
Scholars have used rights revolution studies to assess the potential for new
rights revolutions in other countries. See, e.g., Epp and others.
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consisting of rights-advocacy organizations, rights-advocacy
lawyers, and sources of financing.”5
While the first three factors have been recognized by several
scholars as influencing the success of a rights revolution,6
Professor Charles Epp proposed the fourth factor to emphasize not
only the need for “sustained rights-advocacy litigation,” but also
the need for materials resources to support such advocacy.7
According to Epp, a cadre of committed and capable advocates is
crucial, but insufficient; rights advocacy also demands significant
and sustained financial resources, including government-supported
financing.8 To some, Epp’s argument may seem cynical: do rights
really come down to money? But ignoring the role of material
resources in rights advocacy is “wholly unjustified,” Epp contends,
particularly given the historical reality of an uneven “litigation
playing field.”9 Ultimately, “the judicial process is costly and slow
and produces changes in the law only in small increments, [so]
litigants cannot hope to bring about meaningful change in the law
unless they have access to significant resources.”10
Application of these four necessary conditions factors to
homeless rights advocacy suggests dismal prospects. First, the
requirement of a strong bill of rights and constitutional rights
works for American society on a general scale, but not necessarily
on a specific scale for the homeless. The presence of federal and
state constitutions does not translate into positive rights for the
homeless. The constitutional predisposition to positive rights—
such as a right to shelter, health care, or sustenance— is decidedly
adverse: constitutional positive rights generally do not thrive at the
federal level because the federal constitution is a negative
charter,11 and such positive rights may not thrive at the state level
5
Charles R. Epp, The Rights Revolution: Lawyers, Activists, and Supreme
Courts in Comparative Perspective. Chicago: University of Chicago Press, 1998
at 3.
6
Cite. Break cite down to correlate to each factor.
7
Epp at 3.
8
Epp at 3.
9
Epp at 3.
10
Epp at 3.
11
Cite Tushnet; Judge Posner in Jackson v. City of Joliet, 715 F.2d 1200,
1203 (7th Cir. 1983) (calling the U.S. Constitution “a charter of negative rather
than positive liberties”); compare Daniels v. Williams, 474 U.S. 327, 331 (1986)
(holding the Due Process Clauses protects individuals from “the arbitrary
exercise of the powers of government.”) But many scholars contend the Bill of
Rights contains positive rights. See, e.g., Stephen Holmes & Cass R. Sunstein,
The Cost of Rights: Why Liberty Depends on Taxes (W. W. Norton & Co.
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because courts are reluctant to impose positive right obligations on
state legislatures, even when an affirmative constitutional
obligation is found.12 Therefore, many of the specific rights that
homeless advocates prioritize do not appear to be realized by
constitutional charters.
The second contributor to a rights revolution, an activist
judiciary, also withers when specifically applied to the homeless.
[Apply and cite Julie Nice, Deconstitutionalization of Poverty Law
and Dialogic Default.]
(3) Culture of rights consciousness: generally speaking,
American culture is such a “rights conscious” culture, but private
and institutionalized biases against the poor (and the homeless in
particular) make this consciousness contextual. In other words,
this rights consciousness is more generous on a general and
abstract level, and less so when applied directly to individuals that
are largely rejected by society, such as the homeless. Cite to
attitudes about the homeless and laws that criminalize
homelessness.
(4) Skeptical about support structures for the homeless, which
affect rights advocacy and legal mobilization prospects. Financing.
Cite evidence that the homeless lack sufficient organization,
outside advocates, and political power or representation. The
homeless generally lack the capacity to secure social change
through litigation or through the legislative process.
This
weakness (lack of advocacy campaigning) could impede the
proposal of rights in the first place, their implementation, or their
enforcement.
But the conception of rights revolutions can be understood
more broadly than outside of the courts as well. In The Rights
1999) at pp. 52-54; Susan H. Bitensky, Theoretical Foundations for a Right to
Education Under the U.S. Constitution: A beginning to the End of the National
Education Crisis, 86 Nw. U. L. Rev. 550 (1992); Susan Bandes, The Negative
Constitution: A Critique, 88 Mich. L. Rev. 2271 (1990); Seth F. Kramer,
Allocational Sanctions: The Problem of Negative Rights in a Positive State, 132
U. Pa. L. Rev. 1293 (1984); compare Frank Cross, The Error of Positive Rights,
48 UCLA L. Rev. 857, 873 (2001) (reviewing these perspectives and concluding
“the rights recognized in the Constitution are not perfectly negative, [but] they
are overwlemingly oriented that way.”)
12
Cite Hershkoff. CITE social welfare articles. Federal perspectives on
social welfare rights, particularly constitutional welfare rights, is decidedly
negative. See Cross at 874 (discussing Supreme Court precedent declining to
read a positive right to welfare benefits or other positive government aid).
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Revolution: Rights and Community, Samuel Walker (1998:iv)
defines the rights revolution to include "a broad array of formal
rights codified in law and court decisions ... [and] a new rights
consciousness, a way of thinking about ourselves and our society."
Perhaps these homeless bills of rights will have their most
enduring impact on the American culture of rights discourse.
B. Positive and Negative Rights
A homeless bill of rights may contain various enumerated
rights, some of which can be categorized as either positive or
negative rights. Positive rights are commonly understood as rights
that the government is obligated to provide, such as public
education or health care benefits.13 By contrast, negative rights are
those that do not obligate government action, but instead, require
lack of government interference, such as free speech.14 Homeless
bills of rights present the threshold question of whether the
government should make statutory commitments to positive or
negative rights for the homeless. Another inquiry logically
follows: if the government makes such statutory commitments,
what should the scope of those commitments be?
[Negative rights. Statutory, specifically with respect to
homeless advocacy. Criminalization of homelessness; these laws
are often upheld, right now on constitutional and statutory bases.
Right to be free from violence; some prosecutions when homeless
person is battered or killed by domiciled individual, but
infrequent? Resistance to recognizing special vulnerability of the
homeless to hate crimes. 15]
[Positive rights: Frank Cross: The Error of Positive Rights.
Unapologetically “pragmatic, consequentialist” evaluation of
positive rights.16 Problems with positive rights including the
economics of rights enforcement, the politics of rights
enforcement, and the practical effect of rights enforcement. “[T]he
13
Cite. Susan Bandes, The Negative Constitution: A Critique, 88 Mich. L.
Rev. 2271 (1990); Helen Herskoff, Forward: Positive Rights and the Evolution
of State Constitutions, 33 Rutgers L. Rev. 799 (2002).
14
Cite. Some scholars debate whether positive and negative rights can be
meaningfully distinguished. See concept of mixed rights, discussed in
Hershkoff; Cross, The Error of Positive Rights at 864-69.
15
Sara Rankin, Invidious Deliberation: The Problem of Congressional Bias
in Federal Hate Crime Legislation, ___ Rutgers L. Rev. (forthcoming).
16
Cross at 878 (responding to those who resist a pragmatic evaluation of
positive rights).
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curical issues is the effect of permitting judicial enforcement of
these rights. The ability of the judiciary to develop remedies that
effectively enforce positive rights constitutes a reason not to
recognize them.”17 Although his critique addresses constitutional
positive rights, his pragmatic criteria have equal force in
application to positive statutory rights—such as a right to
housing— that might be articulated in a homeless bill of rights.
In fact, judicial enforcement of state statutes providing right to
housing bear out Cross’s argument. Given the unwillingness of
state courts to constitutionalize the right to housing,18 many state
courts have recognized a statutory duty to provide housing. But the
statutory venue has not generated significant improvements. In
some cases where the courts required the officials to fulfill their
statutory duties, the legislature reacted not long after by repealing
the law at issue.19 Alternatively, some states and localities require
17
Cross at 879.
The Supreme Court has declined invitations to find a right to housing in
the U.S. Constitution. See Lindsey v. Normet, 405 U.S. 56, 74 (1972)
(explaining that despite the importance of safe, sanitary housing, “the
Constitution does not provide judicial remedies for every social and economic
ill”). Following Supreme Court’s approach, state supreme courts mostly reject
arguments based on their state’s constitution out of hand. Alabama is the only
state court that has found a constitutional duty to provide “adequate provision”
for the poor, but has determined that this duty is unenforceable. See Atkins v.
Curtis, 66 So. 2d 455, 458 (Ala. 1953) (“Section 88 of the Alabama Constitution
of 1901 makes it the duty of the legislature to … make adequate provision for
the maintenance of the poor. […] But of course there is no way to force the
legislature to perform that duty, although it has always undertaken to do so.”).
19
In Hodge v. Ginsberg, 303 S.E.2d 245, 247 (W.Va. 1983), homeless
plaintiffs sued the Commissioner of the West Virginia Department of Welfare
seeking to compel the Commissioner to provide shelter, food, and medical care
to the homeless as “incapacitated adults” under the Social Services for Adults
Act. The Commissioner argued (1) that homeless individuals were not
“incapacitated adults” within the meaning of the statute, and (2) that the statute
was discretionary rather than mandatory. Id. at 248-51. The court held that
homeless persons were “incapacitated adults,” reasoning that the statute should
be construed broadly to achieve its remedial purpose. Id. at 249-50. The court
next held that although the statute gave the Commissioner the discretion to adopt
whatever plan it deemed necessary, once the plan was adopted, it was required
under the statute to be implemented for the benefit of “incapacitated adults.” Id.
at 251. To enforce this requirement, the court granted a writ of mandamus
directing the Commissioner to provide food, shelter, and medical care. Id.
In Hilton v. City of New Haven, 661 A.2d 973, 986 (Conn. 1995), the
Connecticut supreme court found that the trial court was proper in requiring the
City of New Haven to draft a new compliance plan and to submit to continued
judicial oversight pursuant to a statute that required the City to provide
emergency shelter to all eligible individuals. See id. at. 987-88. The portion of
the Connecticut law making the provision of emergency shelter mandatory on
18
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the provision of shelter or housing through consent decrees rather
than through judicial order.20 New York is one unique example of
towns in the state has since been repealed. See Conn. Gen. Stat. Ann. § 17b-115
(West) (“C.G.S.A. § 17b-115. Repealed. (1997, June 18 Sp.Sess., P.A. 97-2, §
164, eff. July 1, 1997.)”).
The Wisconsin supreme court in Clark v. Milwaukee County, 524 N.W.2d
382, 386 (Wis. 1994), considered a class action filed by a homeless individual
alleging that the county social services department failed to provide general
relief for housing that is “adequate for health and decency.” The court held for
the plaintiff, stating that despite the burden on the public coffers, the existing
payment scheme–providing only $98.00 as a shelter stipend where local shelters
required payments of around $200.00–was not enough to provide for housing
adequate to health and decency pursuant to the legislative mandate. Id. at 38788. But rather than granting mandamus relief, the court instead “remanded for
further proceedings, at which time the circuit court will order the County to
promulgate written standards of need for housing and revise policy directive No.
I-0401-3 to clearly state that a prospective rental statement is acceptable proof to
secure the shelter allowance.” Id. at 388. [NEED TO FIND OUT CURRENT
STATUS- IS LAW REPEALED? Anything happened?]
In Ctr. Twp. of Marion County v. Coe, 572 N.E.2d 1350, 1354 (Ind. Ct.
App. 1991), the court granted the plaintiffs’ preliminary injunction against the
Trustee of Center Township, requiring the Trustee to “provide emergency
daytime and evening shelter for those class members who are unable to secure
such space in the existing private shelters,” though granting the Trustee
discretion in whether to provide this shelter through public facilities or through
providing funds for the homeless to use private facilities like hotels. CITE. (The
law at issue in this case has since been repealed. NEED CITE TO REPEAL.)
More recently, in Baltimore v. Dist. of Columbia, 09-CV-759, 2011 WL
31795 (D.C. Jan. 6, 2011), the D.C. Appeals Court refused to find a requirement
that the homeless be given access to shelter, except where stated in the
unambiguous text of the statute. Id. at *1151. The statute at issue provided
explicitly that there was only a right of homeless individuals to “appropriate
space in District of Columbia public or private buildings and facilities” where
the weather was severe or frigid and where no access to shelter was possible. Id.
The District of Columbia did at one point require provision of services to
homeless individuals in a much broader fashion, [CITE TO LAW] but that law
has since been repealed. [CITE TO REPEAL.] See also Florence Wagman
Roisman, Establishing a Right to Housing: An Advocate’s Guide, 428 PLI/Lit 9,
19 (1992) (discussing the effects of the District of Columbia Overnight Shelter
Act passed in 1985). New Hampshire and Puerto Rico each have laws
mandating the provision of some degree of shelter for the homeless, although
the validity of these laws has never been tested in court. See NH Law He-M 314
(1999) (requiring that no person can be turned away from a shelter between
October 1 and April 30 for any other reason than posing a direct threat to
themselves or others); 8 L.P.R.A. § 1006c (guaranteeing to the homeless “the
right to receive shelter which is adequate and suitable for human habitation, with
the appropriate toileting and restroom facilities, within a safe environment of
dignity and respect”). PICK UP THE PUERTO RICO LAW INFRA.
20
New York’s experience has been somewhat unique, in that its
requirement to provide emergency shelter for the homeless in New York came
about as a series of consent decrees entered into with homeless individuals by
the City and the State. CITES. But New York’s developments have depended
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the use of consent decrees to enforce a right to housing; however,
New York is a distinguishable example because the decrees were
partly dependent on constructions of state constitutional
provisions.21 Moreover, consent decrees have been bitterly
criticized as anti-democratic and “plagued by unintended
consequences.”22
C. Judicially Enforceable and Aspirational Rights
Rights theory can also help to inform the next logical
quandaries: the government makes statutory commitments to
positive or negative rights what should the consequences be if the
government fails to fulfill these commitments? How should these
rights be enforced? Do rights need to be enforced in order to be
rights?
For many scholars, the assumption certainly seems to be yes.23
Several scholars find equivalency between the existence of a law
and its enforcement.24 Indeed, the concept of the rights revolution
is predisposed to see judicial enforcement as the ultimate hallmark
of a right: the judiciary ultimately enforces—and thus, makes
real—civil rights and liberties.25
But other scholars maintain that the preoccupation with
judicially enforceable rights misses the point.26 Instead, the
in no small part on interpretations and enforcements of the state constitution.
CITE.
21
Cite.
22
Ross Sandler & David Schoenbrod, The Supreme Court, Democracy, and
Institutional Reform Litigation, 49 N.Y.L. Sch. L. Rev. 915 (2004-2005).
23
[DISCUSS: Mark Tushnet, Social Welfare Rights & the Forms of
Judicial Review, 82 TEX. L. REV. 1895 (2004).]
24
For example, Frank Cross argues “[t]he notion of a legal right necessarily
implies law, which implies government enforcement. The claim that legal rights
require legal enforcement is tautological...” Frank Cross, The Error of Positive
Rights, 48 UCLA L. Rev. 857, 865 (2001). See also Stephen Homes & Cass R.
Sunstein, The Cost of Rights at p. 43 (1999) (explaining that all legal rights
depend on government enforcement). ADD MORE CITES.
25
Cite Epp.
26
CITE. Southworth at 1208 (internal citations omitted):
Epp's work reflects a research tradition whose premise is that
laws are unlikely to significantly influence behavior unless
they are successfully mobilized by claimants who have the
commitment, ability, and resources to enforce them through
the courts. Statutes, regulations, and judicial decisions, in this
view, produce little voluntary compliance. Rights recognized
in other arenas whether official state forums, such as
legislatures and agencies, or nongovernmental arenas, such as
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essence of the law is in its expressive and normative meaning.
Michael McCann's theory of legal mobilization treats law more "as
a system of cultural and symbolic meanings than as a set of
operative controls. It affects us primarily through communication
of symbols, by providing threats, promises, models, persuasion,
legitimacy, stigma, and so on."27 This perspective liberates rights
from the confines of the judiciary, recognizing that rights are
“claimed and negotiated in a wide variety of settings, including
courts but also legislatures, agencies, the workplace, the media,
public squares and private interactions, and how these various
forms of activism influence one another in complex ways.”28
Thus, the normative and symbolic influence of the law can register
independently of judicial enforcement. Accordingly, rights revolutions
need not be overly preoccupied with judicially enforceable rights as the
only means to influence societal norms and behavior. In other words,
civil rights and liberties are not only made real by judicial enforcement,
they have a normative and symbolic existence apart from enforcement.
[DEVELOP: rights consciousness?]
[Moreover, judicial enforcement is not the only relevant venue
for realizing rights; other government agencies and social settings
negotiate rights and contribute to their definition. DEVELOP:
From Southworth at 1208: “Courts, however, are not the only
arenas in which activists invoke rights claims and attempt to give
them legal force, and they are not the only institutions to have
contributed to the expansion of individual rights. Although
litigation played a prominent role in the individual rights
revolution in the United States (Freeman 1975; Scheingold 1974;
Tushnet 1987), activists also pursued individual rights claims
before agency officials and legislatures, in the press and the
workplace, and on the streets. (Carson 1981; Piven & Cloward
1979; Tushnet 1994:47-50). Many critics of civil rights litigation
contend that individual rights litigation has accomplished little
where it has not been accompanied by legislative and executive
branch support (e.g., Dolbeare & Hammond 1971; Horowitz 1977;
Rosenberg 1991).”]
Such is the slippery and complex nature of rights: perhaps no
other topic has generated the same richness of debate: what are
the workplace, the media, and private interactions, require
judicial enforcement to be effective.
27
Michael McCann, Rights at Work: Pay Equity Reform and the Politics of
Legal Mobilization. Chicago: Univ. of Chicago Press (1994) at 6.
28
Southworth, discussing McCann’s work and citing to Helena Silverstein,
Unleashing Rights: Law, Meaning, and the Animal Rights Movement. Ann
Arbor: Univ. of Michigan Press (1996) at 12.
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rights; when do rights exist; how do rights (and should they)
influence or control the behavior of government and individuals?
Ultimately, it is through this rabbit hole that homeless bills of
rights must travel. To be sure, it is not a simple journey, but the
quest will be worthwhile if these new laws can make a meaningful
difference in the rights of the homeless and how domiciled
Americans perceive them.
II.
HOMELESSNESS IN THE UNITED STATES AS CONTEXT.
Give me your tired, your poor, your huddled masses
yearning to breathe free, the wretched refuse of
your teeming shore. Send these, the homeless,
tempest-tossed to me. I lift my lamp beside the
golden door!29
Despite the Statue of Liberty’s welcoming message, the
homeless remain one of the most vulnerable, reviled, and
underserved populations in America. Estimating the number of
homeless people in the United States is an elusive task30 and, in the
endeavor, it is easy to forget that numbers represent real human
beings. There are no definitive estimates of U.S. homelessness,
but some commonly cited estimates suggest that anywhere from
650,000 to 1.1 million Americans are homeless in at any given
time.31 Approximately 38 percent of these people are families with
children.32 In fact, homeless families represent one of the fastest
growing segments of the homeless population.33 Approximately
23 percent of all homeless individuals are children.34 According to
29
The Statue of Liberty bears these first two lines of this sonnet from Emma
Lazarus, The New Colossus (1883).
30
The slipperiness of the effort is partly reflects the various ways and
purposes the homeless may be defined or categorized into subcategories or
subpopulations. The U.S. Department of Housing and Urban Development
(HUD), which consider an individual homeless if he or she lives in an
emergency shelter, transitional housing program, safe haven, or a place not
meant for human habitation, such as a car, abandoned buildings, or on the street.
HUD also categorizes homelessness in various ways [INSERT explanations
of different sorts of categorizations or cite infra to related footnote and text in
this section]. Moreover, the data can also be complicated by the use of baselines
and measurements of time: estimates might focus on a single evening, a
particular week, year, or other increment.
31
http://www.povertyliving.com/2013/03/homeless-statistics-in-the-unitedstates/#sthash.7A4r2Eqy.dpuf
32
Id. at 3-4.
33
The percentage of homeless families increased by 1.4 percent (or 3,222
people) from 2011 to 2012. HUD data at 3.
34
2007 U.S. Conference of Mayors.
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a 2011 study by the National Center of Family Homelessness,
approximately one out of every 45 children in the United States
experiences homelessness at some point in the year.35 The majority
of these homeless children are under the age of 7.36
The overall national rate of homelessness appeared to decline
from 2011 to 2012 by less than 1 percent.37 Despite this modest
decline on a national level, several states experienced a substantial
increase in homelessness during that same time period.38 The most
significant percentage increases occurred in the number of
“unsheltered” homeless.39
This distinction between the sheltered and unsheltered
homeless warrants some explanation. Some federal definitions40
break the homeless into various sub-populations, contemplating a
contrast between sheltered individuals (those living in transitional
or temporary shelters) and unsheltered individuals.41 On average,
approximately 27 percent of homeless people are turned away
from shelters for lack of space.42 At least 38 percent of people
experiencing homelessness in 2012 qualified as unsheltered,
meaning they were living on the streets or in places not intended
for human habitation.43 Between 2009 and 2011, the unsheltered
homeless were the only homeless subpopulation to see an increase
of approximately 2 percent.44 At the state level, 27 of 50 states
experienced an increase in unsheltered homeless during that same
time frame.45
35
Cite to study.
Cite to study.
37
Id. at 3. The recession will force 1.5 million more people into
homelessness over the next two years, according to estimates by The National
Alliance to End Homelessness. In a 2008 report, the U.S. Conference of Mayors
cited a major increase in the number of homeless in 19 out of the 25 cities
surveyed. On average, cities reported a 12 percent increase of homelessness
since 2007. Although homelessness is a difficult number to measure definitively,
the rising number of “unsheltered homeless” show that more people—especially
families—are sleeping in shelters, living in their cars, and taking up residence in
tent communities.
38
Id. at 15.
39
National Alliance, supra note __, at 19
40
Cite and insert HUD definition of homelessness here.
41
Cite to sub-provision of HUD definition.
42
NLC Rep. at 6.
43
Id. at 19.
44
National Alliance, supra note __, at 19.
45
Id.
36
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The sustained increase in the unsheltered homeless
subpopulation warrants particular concern. The unsheltered
homeless are the most vulnerable to illness, drug abuse, and
violence.46
This subpopulation is also most affected by
criminalization measures and ordinances, which penalize them for
living on the streets and in public places.47 But, as explained
below, both sheltered and unsheltered Americans shoulder these
special burdens.
Both sheltered and unsheltered homeless
Americans are exploited, rejected, and underserved. By any
significant measure, the homeless are overdue for a rights
revolution. The question is whether one will ever come.
A. Hated & Homeless
 Homelessness increases the chances of illness, violence,
incarceration, and a litany of other maladies when compared to
domiciled individuals. Indeed, the very fact that one is homeless
increases the likelihood of being targeted for bias-motivated
violence. Survey incidence of hate crimes against the homeless.
 Summarize societal animus toward the homeless. Insert
discussion of Susan Fiske studies showing societal animus toward
the homeless.
 Survey popularized, mainstream expressions of animus
toward the homeless.
 Transition to the discussion of the increasing
criminalization of homelessness, which is a codification of
legislative/societal disdain.
B. The Criminalization of Homelessness
Any legislative effort to stem homelessness must confront the
growing phenomenon of state statutes and city ordinances that
criminalize homelessness. Despite the fact that most cities lack
adequate shelter space to allow homeless individuals the ability to
conduct “life-sustaining” activities out of the public eye, 73
percent of American cities have ordinances prohibiting such
activities as sleeping or “camping,” eating, sitting, begging or
panhandling, and urinating or defecating in public.48
46
Id.
National Law Center on Homelessness and Poverty, Report:
Criminalizing Crisis: The Criminalization of Homelessness in U.S. Cities at 6
(2011).
48
Id. at 6-7.
47
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City ordinances criminalizing homelessness continue to
increase. Of 234 cities surveyed by the National Law Center on
Homelessness and Poverty (NLCHP), 53 percent prohibited
begging or panhandling in public places, 40 percent prohibited
“camping” in public places, and 33 percent prohibited sitting or
lying down in public places.49 The homeless have also been
targets of “sweeps” of public areas where they temporarily reside,
without notice.50 Sweeps are conducted by law enforcement
officials, and are designed to clear certain areas of homeless
persons.51 They often result in the confiscation and destruction of
personal
belongings,
including
valuable
identification
documentation, medications, and other property of sentimental
nature.52 Both the criminalization of “life-sustaining” activities
and random sweeps are said to be violations of the homeless’
constitutional rights and basic human dignity.53
Criminalization measures further perpetuate homelessness by
creating barriers to access.54
First, the loss of important
documentation during sweeps limits the homeless’ ability to
provide proper identification for employment and housing
applications, or access social services and benefits.55 Second,
violation of ordinances often involves criminal penalties such as
arrest, jail time, and fines.56 Many employers and Public Housing
Authorities perform criminal background checks in order to
determine baseline eligibility.57 In addition, some states terminate
or suspend certain social services and benefits when a person has
been incarcerated.58 As a result, homeless individuals who have
been penalized for violating these ordinances find themselves
unable to obtain gainful employment, permanent housing, or
services and benefits.
C. The Cost of Homelessness
Homeless advocates routinely confront another problem in
legislative advocacy: homelessness is commonly perceived as an
49
Id. at 7-8.
Id. at 21.
51
Id.
52
Id.
53
Id. at 30.
54
Id. at 28.
55
Id. at 21.
56
Id. at 15, 35.
57
Id. at 32-34.
58
Id.
50
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intractable problem that will never go away because it is too
complex, pervasive, and expensive to solve.59
Intractable
problems generate a complex web of legislative, judicial, and
societal responses, including disengagement and denial.60 Indeed,
social and civil rights issues are often perceived in such light, and
parties frequently turn to cost-benefit projections.61
To chip away at the complex problem of homelessness,
advocates commonly propose and pursue a broad range remedies,
including positive remedies.62 For example, some advocates argue
that a primary cause of homelessness is a lack of affordable
housing;63 therefore, any serious legislative effort to advance
homeless rights must address affordable housing.64 Opponents
respond that any serious effort to address affordable housing is,
well, unaffordable.65 Whether advocates prioritize affordable
housing, health care, job training, or education to stem
homelessness, the sheer magnitude of the problem invites
rejection. It is not economically or logistically feasible, opponents
maintain, to solve homelessness. Instead, the impulse for
legislative bodies is often to pursue what are perceived as cheaper,
quicker fixes to “solve” homelessness. Frequently, the easiest
59
Link to discussion of positive vs. negative rights.
Need cites.
61
Cite to Sunstein’s cost benefit analysis?
62
For example, the National Law Center on Homelessness & Poverty
makes several policy recommendations to improve the plight of the homeless,
including establishing city-community councils on homelessness; discontinuing
the passage of laws that criminalize the homeless; improving police-homeless
relationships through training and liaison collaboration; and providing the
homeless with more affordable housing and other resourcesNational Law Center
on Homelessness and Poverty, Criminalizing Crisis: Advocacy Manual 4-6
(2011).
63
Basic Facts about Homelessness: New York City, Coalition for the
Homeless,
http://www.coalitionforthehomeless.org/pages/basic-facts-abouthomelessness-new-york-city (last visited April 3, 2013). For persons in families,
the three most commonly cited causes, according to a 2008 U.S. Conference of
Mayors study, are lack of affordable housing, poverty, and unemployment. For
singles, the three most commonly cited causes of homelessness are substance
abuse, lack of affordable housing, and mental illness.
64
Housing is considered affordable when its cost constitutes 30 percent or
less of a household’s monthly income. National Alliance, supra note__, at 24.
However in 2010, approximately one in four U.S. renter households spent 50
percent or more of their monthly income on housing. Id. Some states in 2010
saw a severely high housing cost burden of over 80 percent of monthly
household income. Id. Even in states with relatively low levels of housing cost
burden, more than half of households below the poverty line still spent more
than 50 percent of their income on housing. Id.
65
Need cite.
60
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fixes amount to “out of sight and out of mind” strategies that
remove the homeless from sight— such as relocation initiatives or
laws that criminalize homelessness.66 These responses avoid
engagement with the thorny questions about whether or how
positive rights could be afforded to the homeless. 67
But advocates respond that incarceration of the homeless is
more costly than the provision of shelter or permanent housing.68
Some projections estimate that on average, a city spends
approximately $87 per day to incarcerate a person, compared to
$28 per day to provide shelter for that person.69 Other studies
suggest a correlation between the provision of permanent
supportive housing and a decrease in costs for incarceration,
emergency room admissions, and behavioral health care.70
The perennial debate over the cost-benefits of increasing
support and services versus increasing penalties and enforcement is
an enduring tension.71 As explained below, this tension persists in
One theory of community development, the “Broken Windows” theory,
argues that the first signs of poverty in a community are like the first broken
windows; they must be repaired or removed immediately to prevent spreading
deterioration. WRAP at 2. Adherents to this theory may see homeless people
as “broken windows” that must be removed for the good of the community. Id.
Many local governments thus enact “quality of life” laws that restrict activities
such as camping, storing property, begging, sleeping or loitering in public. NLC
Rep. at 17-24. Rather than promoting the welfare of the community, these laws
extend the cycle of homelessness by making it more difficult for the homeless to
access service providers, find employment, and meet their basic needs. NLC
Rep. at 31-36. “Broken Windows” laws overtax the criminal justice system and
cost taxpayers substantially more than providing housing for the homeless.
NLC Rep. at 37-40. These laws also contradict traditional standards of fairness
embodied in the Bill of Rights, especially the right to due process, the right to
free speech, and the right to be free from cruel and unusual punishment. NLC
Man. At 19.
67
These avoidance strategies do not mean the legislative body avoids a
normative judgment or action about whether positive rights should be afforded.
To the contrary, ___. Cite Bandes.
68
Id. at 39.
69
The Federal Strategic Plan to End Homelessness conducted between 2004
and 2009. Id. at 9.
70
Cost Savings with Permanent Supportive Housing, National Alliance to
End Homelessness, http://www.endhomelessness.org/library/entry/cost-savingswith-permanent-supportive-housing (March 1, 2010). This study charted the
changes in state expenditures pre- and post-placement of homeless individuals in
permanent supportive housing in four cities and one state. Post-placement, there
was a demonstrated decrease in all locations in police-jail costs, emergency
room costs, and physical and behavioral health care costs.
71
See, e.g., Stephen Holmes & Cass R. Sunstein, The Cost of Rights: Why
Liberty Depends on Taxes (W. W. Norton & Co. 1999).
66
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the latest method of homeless advocacy: the state-level enactment
of a homeless bill of rights.
III.
CASE STUDIES:
CURRENT EFFORTS TO ADVANCE
HOMELESS BILLS OF RIGHTS.
[Insert Umbrella Section and Roadmap]
A. Puerto Rico: Administrative Plans, Positive Rights &
the Vexing Lack of Judicial Enforceability.
For many mainland Americans, the U.S. territory of Puerto
Rico seems a distinct country. But in 1998, Puerto Rico broke a
barrier in U.S. homeless advocacy: it was the first U.S. territory to
pass a homeless bill of rights, a legislative declaration of rights that
belong to Puerto Rico’s homeless.
Although the Constitution of Puerto Rico, adopted in 1952,
prohibits discrimination based on “social condition,” abuses of the
rights of the homeless increased during the 1990s.72 In 1998,
Puerto Rico passed Act 250 to “provide services for the homeless,
[and] to implement a well-integrated public policy that will allow
these persons to meet their basic needs and have their rights
respected.”73 Conceived as an administrative plan to mitigate
homelessness, Act 250 established a commission within the
Department of the Family tasked with coordinating the efforts of
government agencies, the private sector, and nonprofits.74 The role
of the Commission was to determine the best course of action to
implement public policy regarding the homeless in Puerto Rico,
focusing on housing, health, employment and income, and access
to government services.75 The 1998 Act was not intended to be
judicially enforceable; instead, its creation, implementation, and
enforcement was entirely vested in the Commission.76
72
P.R. Const. art. II § 1. See also telephone interview with Glorin Ruis
Pastush, La Fondita de Jesus, Feb. 22, 2013).
73
Act No. 250, 13th Leg., 3d Sess. (P.R. 1998) (repealed 2007).
74
Id. The new commission, the Commission for the Implementation of the
Public Policy Regarding the Homeless, was structured as a committee chaired
by the Secretary of the Department of the Family.
75
Id. at 6-10.
76
Id.
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Shortly thereafter, in 2000, the Legislative Assembly of Puerto
Rico77 observed that “the homeless have rights in Puerto Rico,
…but on many occasions, due to their health, financial and social
conditions, they do not know or are unable to claim their rights,”
Puerto Rico passed Act 277.78 The purpose of Act 277 is to
“impart … legitimacy not only to the homeless, but also to any
representative of any assisting organization.”79 Act 277 allows
advocacy groups to serve as “intercessors” for homeless
individuals and act on their behalf in legal proceedings.80 It also
requires that the court try cases involving homeless individuals
through summary proceedings (which are quicker than ordinary
judicial proceedings) and waive court fees. 81
Despite the legal advances of Act 250 and Act 277, in 2007 the
Legislative Assembly noted that “Puerto Rico still has not
developed models to address the homeless situation.”82 Realizing
that the government was only one among many different service
providers for the homeless, the legislature decided that a multisector approach was more effective to serve homeless needs.83 In
September, the legislature repealed Law No. 250 and replaced it
with Law No. 130, which created a Multi-Sector Homeless
Population Support Council.84 The new Act “aims to achieve the
goal of eradicating homelessness … [and] make Puerto Rico a
place where all human beings have a roof over their heads, and
prompt and sensitive access to the basic services every human
being is entitled to receive.” 85 Act 130 enumerates several
positive and negative rights guaranteed to the homeless, including
the right to shelter;86 nourishment;87 medical attention;88 all social
77
The Asamblea Legislativa de Puerto Rico is the territorial legislature of
the Commonwealth of Puerto Rico, which is responsible for the legislative
branch of the government of Puerto Rico. The Legislative Assembly is a
bicameral legislature consisting of an upper house, the Senate, and the lower
house, the House of Representatives. Every bill must be passed by both houses
and signed by the Governor of Puerto Rico to become law. The structure and
responsibilities of the Legislative Assembly are defined in Constitution of
Puerto Rico which vests all legislative power in the Legislative Assembly. In
relevant respects, the Legislative Assembly of Puerto Rico is comparable to the
bicameral structure and process of other state legislative bodies on the mainland.
78
Act No. 277, 13th Leg., 7th Sess. (P.R. 2000).
79
Id.
80
Id. at § 698.
81
Id. at § 691-701.
82
Act No. 130, 15th Leg., 6th Sess. (P.R. 2007).
83
Id. at 14.
84
Id. at 21.
85
Id.
86
Id. at §5 (a)(1).
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services and benefits for which they qualify;89 workforce
training;90 protection from law enforcement officers against any
kind of mistreatment;91 and free access to parks, town squares, and
other public facilities.92
Like the Commission created under Act 250, the Multi-Sector
Council created under Act 130 was similarly situated in the
Department of the Family and chaired by its Secretary. 93 In
addition to retaining the former Commission’s purpose of
implementing and developing policy and strategy, the Council was
also tasked with “seeking and developing new options” to provide
services and housing for the homeless.94 The 21-member Council
was comprised of nine members from the government sector, nine
members from a coalition of homeless services—two of whom
have experienced homelessness—and one member from the
private sector.95 Like Act 250, Act 130 is not judicially
enforceable; instead, it tasks a council within the Department of
the Family not only with responsibility for implementing measures
to provide the enumerated rights, but also with responsibility for
enforcing compliance.96
In 2007, the Puerto Rican legislature opined that public policy
on homeless issues had progressed in the prior decade, but it also
noted a persistent lack of protocols to facilitate access to public
services.97 As a result, in December 2007, the legislature enacted
Act 199, which required all government departments and agencies
to establish protocols for the access and render of services to the
homeless, and “awareness trainings” on homeless rights.98 Act
199 made service providers, including the government, more
accountable by publishing the protocols for public inspection.99
In 2012, another bill for the protection of the homeless was
introduced in the Puerto Rico House. The proposed bill, 3912,
87
Id. at §5(a)(2).
Id. at §5(a)(3).
89
Id. at §5(a)(4).
90
Id. at §5(a)(5).
91
Id. at §5(a)(6).
92
Id. at §5(a)(8).
93
Id. at p. 21.
94
Id.
95
Id. at 22.
96
Id. at §6.
97
S.B. 1455, 15th Leg., 6th Sess., at 1-2 (P.R. 2007).
98
Id. at 1.
99
Id. at 4.
88
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noted that despite the legislation passed in 1998 and 2007, “very
little has been achieved in advancing the effort to improve the
situation of homelessness.”100 To remedy this perceived lack of
progress, 3912 created specific procedures for identifying and
treating homeless people suffering from substance abuse, physical,
or mental health issues.101
[DEVELOP: Assessment/evaluation: administrative approach,
with tentative expressions of judicial enforceability. But some
critics of civil rights litigation contend that individual rights
litigation has accomplished little where it has not been
accompanied by legislative and executive branch support (e.g.,
Dolbeare & Hammond 1971; Horowitz 1977; Rosenberg 1991).
Still, if the last decade is any indication of the impact of a purely
administrative plan, (ambitious goals, important statements of
policy, but not much substantive action), Puerto Rico’s more
recent legislative activity suggests an interest in mobilizing judicial
protection of individual rights. Adding teeth through judicial
enforceability.
Cite interviews with advocates.
Value of
aspirational rights? ]
B. Rhode Island: A Blueprint of Negative Rights.
The Rhode Island legislation took a different approach. In
2011, following a cut to funding for supportive housing (which
was earmarked for helping homeless people return to stable living
situations), legislators introduced several bills seeking to protect
the rights of the homeless, including a bill to fund supportive and
affordable housing,102 a bill to require banks to allow those
foreclosed upon to remain in their homes by paying rent,103 and a
homeless bill of rights. Although the funding and foreclosure bills
(S 2203 and S 2307) are still in committee, the Rhode Island
Homeless Bill of Rights was enacted in 2012 as an amendment to
the Fair Housing Act.104
The intent of the Rhode Island Homeless Bill of Rights was
for “no person to suffer unnecessarily or be subject to unfair
100
P.
of
C.
3912,
available
at
http://www.senadopr.us/Proyectos%20del%20Senado/pc3912-ta.pdf.
101
Id.
102
Need cite to 2203. Rhode Island Coalition for the Homeless,
http://www.rihomeless.org/Resources/HomelessBillofRights/HomelessBillofRig
htsPassage/tabid/275/Default.aspx (last visited April 7, 2013).
103
Need cite to 2307.
104
S. 2052, Sub. B, 2012 Gen. Assemb., Reg. Sess. (R.I. 2012).
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discrimination based on his or her homeless status.”105 The initial
draft of the bill (“Substitute A”) provided the homeless with
positive rights such as fair and affordable housing and emergency
health care; and negative rights such as access to public facilities
and confidentiality of records.106
A notable distinction between Substitute A and Substitute B is
the removal of language against criminalization of the homeless,
and language pertaining to law enforcement agencies in particular
(See Table 1).107 The initial draft included provisions for equal
treatment by law enforcement agencies, protections against
criminal sanctions for sleeping in public, and protection from
disclosure of personal records.108 However, the final version of the
Rhode Island bill is silent as to the role of law enforcement
agencies in either protecting or refraining from interfering with
homeless rights.109
Substitute B, the final version of the bill, was signed into law
on June 20, 2012, the last day of the legislative session.110 As
enacted, the Rhode Island Homeless Bill of Rights protects the
right, to move freely in public spaces;111 to equal treatment from
all state and municipal agencies;112 to be free from discrimination
due to the lack of a permanent address;113 to receive emergency
medical care regardless of the lack of a permanent address;114 to
vote;115 to be afforded a reasonable expectation of privacy,116
including but not limited to protection of one’s personal records
from disclosure.117
Unlike the Puerto Rican law, the Rhode Island law creates only
negative rights; it does not guarantee shelter or food, the first two
rights listed in the Puerto Rican statute.118 However, unlike the
105
Id. at 6.
Id. at 2.
107
S. 2052 Substitute B, Gen. Assemb., Jan. Sess. (R.I. 2012).
108
Id.
109
Id.
110
Rhode
Island
Bill
History
Report,
available
http://status.rilin.state.ri.us/
111
S. 2052, Sub. B. at §34-37.1-3 (1)
112
Id. at §34-37.1-3 (2)
113
Id. at §34-37.1-3 (3)
114
Id. at §34-37.1-3 (4)
115
Id. at §34-37.1-3 (5)
116
Id. at §34-37.1-3 (7)
117
Id. at §34-37.1-3 (6)
118
Act 130 §5 (a) (1), (2)
106
at
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Puerto Rican legislation, the Rhode Island statute is judicially
enforceable and provides for injunctive and declaratory relief,
actual damages, and attorneys’ fees.119
[DEVELOP assessment. Criticized for bending on positive
rights, criminalization provisions, and treatment by law
enforcement. Incrementalism: when is it defined? In the
negotiating process? Rhode Island could not afford much
incremental negotiation because the state has a shorter legislative
session. Instead, perhaps Rhode Island advocates perceived an
incremental strategy by passing a first bill, however modest, to
provide a toe hold for the next progressive advancement of
homeless rights.]
1.
Based on Rhode Island and Passed:
Illinois and Connecticut
[INSERT]
2.
Based on Rhode Island and not yet passed:
Hawaii, Oregon, Vermont, and Missouri
[INSERT]
C. California: No Holds Barred.
In California, existing laws such as the Unruh Civil Rights Act
and the Fair Employment and Housing Act provide that all persons
within the state are “free and equal” and that all persons have the
opportunity to seek and hold employment “without
discrimination,” regardless of race, religion, disability, sexual
orientation, and other personal characteristics.120 However, these
laws do not expressly include housing status as a protected
characteristic. To fill that gap, California Assemblyman Tom
Ammiano introduced a homeless bill of rights on December 3,
2012.121
The purpose of Assembly Bill 5 is “to provide that every person
in the state, regardless of actual or perceived housing status,
income level, mental illness, or physical disability, shall be free
from specified forms of discrimination and shall be entitled to
119
S. 2052, Sub. B. at §34-37.1-4
A.B. 5, Gen. Assem., Reg. Sess., at 1 (2013).
121
Assemb. 5, 2013-2014 Gen. Assemb., Reg. Sess. (Cal. 2012).
120
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certain basic human rights.”122 The bill notes that laws permitting
or promoting discrimination against the homeless are part of a long
history of discriminatory laws, including Jim Crow laws, anti-Okie
laws,123 and so-called “Ugly” laws.124 The California bill would
amend more than 20 existing laws, including the Civil Code,
Election Code, Education Code and Welfare and Institutions Code.
125
Like the Rhode Island bill, the California bill is judicially
enforceable.126 It provides for injunctive and declaratory relief,
actual, compensatory and punitive damages, and attorneys’ fees.127
Also like Rhode Island’s bill, California’s legislation is intended to
be judicially enforceable, providing relief to a homeless plaintiff
whose rights under the bill have been violated.128 But unlike the
Rhode Island and Puerto Rico, California’s bill provides for more
expansive substantive rights. As currently drafted, California’s bill
enumerates a total of twenty-three rights,129 [insert a tally of how
many are unique to California’s bill].130
For example, although protections against criminalization
measures were ultimately removed from Rhode Island’s bill,
California’s still contains such provision.131
In addition,
California’s bill goes one step further than Rhode Island’s
ultimately unsuccessful proposal that law enforcement agencies
should be held accountable for unfair or unequal treatment of the
homeless: California’s bill makes law enforcement agencies
accountable for collecting data regarding the enforcement of
criminalization measures against the homeless, in the form of
annual reports to the state’s Attorney General.132
122
Id.
Okie" is defined as "a migrant agricultural worker; esp: such a worker
from Oklahoma" (Webster's Third New International Dictionary). The term
became derogatory in the 1930s when massive migration westward occurred. In
1937, California passed an "Anti-Okie Law," making it a misdemeanor to "bring
or assist in bringing" any indigent person into that state. The law was later
declared unconstitutional, CITE, but the term retained its derogatory stain.
124
Id. § 1. For a discussion of these discriminatory laws, see WRAP CITE.
125
Id. Title.
126
Id. at §53.6
127
Id.
128
Id. at 14.
129
Cite to Table 2.
130
Cite to Table 2.
131
Id. at 9-13.
132
Id. at 13-14.
123
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Among the negative rights proposed in California’s bill133 are
the right “to engage in life sustaining activities…in public spaces,
including… eating…, possessing and storing personal property,
[and] urinating.”134 Among the positive rights unique to
California includes the right to “safe, decent, permanent,
affordable housing,” and the right to “clean and safe restroom and
shower facilities.”135
The bill provoked extensive media reaction. 136 In particular,
the provision allowing homeless people to carry out life-sustaining
activities in public, such as urinating, drew a great deal of
criticism.137
On January 24, 2013, California’s bill was referred to the
Committee on the Judiciary. It was amended once and is now
suspended. The amended version is expected to go to a full vote of
the House Assembly in January 2014.138
[DEVELOP: Need to highlight the amendments to set up
analysis: what changed and why? Some California advocates are
more wedded to achieve positive rights and some of the negative
rights dropped in Rhode Island (like anti-criminalization and law
enforcement provisions). The amended version revealed an
incremental process that may be related to the longer legislative
session in California. Advocates realized some provisions had to
be removed or softened and had more time to negotiate. May not
have been intentional, but the inclusion of the controversial
negative right to urinate in public may serve as leverage for
positive right of provision of sanitary facilities. But California also
has to be careful that their hard-ball, kitchen sink opening strategy
does not generate ill-will or disengagement from legislators who
may think advocates started by asking too much. Incrementalism:
when is it defined? In the negotiating process? Or after passage of
first bill, hoping for gradual advancement for a next step?]
133
Cite to Table 2.
Id. at §53.3 (f)
135
Id. at § 53.3 (i), (l)
136
See, e.g, Editorial, Don’t Give the Homeless a Bill of Rights, The Press
Enterprise, Jan. 9, 2013, available at http://www.pe.com/opinion/editorialsheadlines/20130109-editorial-dont-give-the-homeless-a-bill-of-rights.ece.
137
Id.
138
Current
Bill
Status,
California
State
Legislature,
http://www.leginfo.ca.gov/pub/13-14/bill/asm/ab_00010050/ab_5_bill_20130404_status.html (last updated April 4, 2013).
134
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III. LESSONS LEARNED
FROM
CASE STUDIES AND SOCIAL
MOVEMENT THEORY.
Variations in among homeless bills of rights represent statelevel judgments about whether the government should make
statutory commitments to social welfare rights, and if it does, what
the consequences should be if the government fails to fulfill these
commitments. For advocates, these bills represent a potential tool
in homeless rights advocacy. Advocates share the goal of
advancing homeless rights, ideally to the point where the equitable
realization of these rights could be fairly described in scope and
impact as a social movement. Despite this shared goal among
advocates, variations among homeless bills of rights show some
differences in substance and strategy. The substantive and
strategic choices advanced by advocates, and perhaps by
opponents, can be understood by consulting social movement
theory.
Because Rhode Island’s bill was the first to be successfully
enacted on the mainland, it is unsurprising that most jurisdictions
have adopted Rhode Island’s as a model. As a result of Rhode
Island’s template, the most common rights for the homeless
include the right to (1) move freely in public spaces, (2) equal
treatment by state and municipal authorities, (3) not face
discrimination while seeking or maintaining employment, (4)
emergency medical care, (5) vote, register to vote, and receive
documentation necessary for voter registration, (6) protection from
disclosure of information or records conveyed to a temporary
residence, and (7) reasonable expectation of privacy regarding
personal property.139 Most of the proposals also allow for
reasonable attorney’s fees for prevailing plaintiffs.140 Some also
amend existing law to add a definition of “housing status” to either
the housing or civil rights code.141
Table 2 compares individual provisions within various pieces
of legislation. The chart indicates which substantive provisions
homeless bills of rights have in common.
[But also strategic considerations. Introduce the need to start
with individualized assessments: what is the political climate of
their jurisdiction? What outside support exists? Particularly
139
Cite.
Cite.
141
Cite.
140
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credible, powerful legislative supporters? Legislative priorities?
Strategic disposition: immediate impact or incremental
policymaking? Once these individualized assessments have been
made, jurisdictions may want to consider observations that can be
drawn from other efforts to date.]
A. Controversial Provisions (That May Be Worth Fighting
For)
[INSERT: One of the first questions that comes to mind for
advocates considering a homeless bill of rights is what provisions
such a law should contain.]
1. Provisions Containing Positive Rights
[DEVELOP: Homeless bills of rights are critical tests, not
only of societal attitudes toward the homeless, but also of societal
and legislative attitudes toward social welfare rights. Observe the
prevalence of negative rights over positive rights; theorize this is
due to the relative ease of negative rights over positive rights.
Positive rights create new government obligations or actions. The
impact on funding/expense: positive rights perceived to be more
expensive than negative rights. Cover counter-arguments that
positive rights are more cost-sensitive in the long run. Refer back
to the economics of homelessness.].
Two positive rights that are common among legislative
proposals are the right to emergency medical care and the right to
receive documentation necessary for voter registration. However,
for most jurisdictions, these likely do not constitute new positive
rights. Most hospitals have to provide emergency medical care
already as a requirement of federal Medicare reimbursement.142
Similarly, most states are already obligated to provide materials
necessary for voting.143 Provision of voting materials would only
create a new burden in states, such as ___ and ____, that require
individuals to have a driver’s license or other government-issued
identification in order to vote.144
Positive rights: [Review: Frank Cross: the error of positive
rights. Problems with positive rights including the economics of
142
Cite.
Cite. Explain.
144
Cite. Explain.
143
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rights enforcement, the politics of rights enforcement, and the
practical effect of rights enforcement. Although his critique
addresses constitutional rights, his critique has equal force in
application to statutory creations like homeless bills of rights. Like
Cross, noting that positive constitutional rights:
are rare and quite limited in their application. All of
these positive rights seem to conform to
majoritarian sentiment and none impose substantial
costs on the budgets of government at any level.
The existence of limited positive rights indicates
that the recognition of additional, substantial
positive rights, such as a right to a minimally
adequate subsistence, would be a quantitative
change of degree and not entirely a qualitative
change of kind. However, changes of degree can be
enormously significant, and more significant than
changes of kind.145
Although statutory rights are distinguishable from
constitutional rights, I suspect that if positive rights become part of
homeless bills of rights and these positive rights are later
challenged, a court is more likely to push enforcement if these
rights “seem to conform to majoritarian sentiment” and do not
“impose substantial costs on the budget of the government at any
level.” These are statutory rights, but to the extent they are new
social welfare rights, court may proceed in a similarly deferential
way, allowing legislatures to maintain control over social welfare
rights. Regardless of judicial enforcement, these positive rights
provisions may prove to be fruitful and may help advocates gain a
toehold in an incremental effort to realize more potent rights.
2. Language relating to Criminalization Measures.
[Lessons from Rhode Island amendments. Increasing judicial
challenges to the criminalization of the homeless, but these
measures continue to be popular because of the general disdain for
the homeless. If not willing or able to negotiate for inclusion of
anti-criminalization provisions in a homeless bill of rights,
advocates should build anti-criminalization strategies into their
impact litigation plans and community education plans. Cite to
Susan Fiske’s work on prejudice against the homeless?]
145
Cross at 873-74 (internal citations omitted).
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Negative rights: not different than those afforded to domiciled
invididuals; judicial enforceability might not root only in statutory
right but also in constitutional rights; probability of Julie Nice’s
dialogic default: history of homeless rights being vindicated is not
great; criminalization measures— perhaps the most significant
negative rights that are specific to the homeless population— are
not addressed in Rhode Island’s bill and are often upheld.
3. Language relating to Law Enforcement.
[Trends seen in Rhode Island; California. The role of law
enforcement in enforcing criminalization and other potentially
critical junctures makes provisions relating to law enforcement
critical for many jurisdictions. To mitigate the potential backlash
from law enforcement, involve law enforcement agencies in the
legislative process early on.]
C. The Role of Public Perception and Education.
[Revisit the negative reaction of public and media to
California’s proposal of the right to urinate and defecate in public.
Need for public education and awareness. Role of the media.
Explain how such unpopular negative provisions might be used as
leverage to negotiate for more popular (but expensive) related
positive rights provisions. Symbolic and normative impact of laws,
even if judicially unenforceable.]
D. The Trend of Judicial Enforceability.
[Discuss trend on the mainland to draft for judicial
enforceability; even Puerto Rico appears to be rethinking its
approach. Perspective is that an aspirational or non-judicially
enforceable bill is too soft, does not have teeth. Reasons why a
particular jurisdiction still might pursue an aspirational bill if not
able to pass enforceable one.]
[DEVELOP: Ann Southworth, The Rights Revolution and
Support Structures for Rights Advocacy, 34 Law & Soc'y Rev.
1203 (2000). Southworth reviewing Epp’s work to concludes that
activist judges are “not primarily responsible for rights revolutions,
and they suggest that organized support for rights litigation may be
at least as important as either receptive judges or constitutional
bills of rights… If support structures are critical, rights activists
should focus on expanding the infrastructure for sustained
litigation campaigns. The appointment of sympathetic judges and
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the adoption of bills of rights will not result in any vast expansion
of judicial protection of individual rights without organizations,
lawyers, and resources to press claims in the courts.]
E. The Impact of the Length of the Legislative Session.
[Discuss how the length of the legislative session might
influence how ambitious the proposed bill may be in scope. Give
examples of Rhode Island’s short legislative session vs.
California’s. Contrast Hawaii’s. Suggests that states with longer
legislative sessions can afford to start more aggressively.]
F. The Influence of Homeless Bills of Rights on
Constitutional Debates.
Such momentum at the state level could foreshadow federal
receptivity to similar legislation. Could the U.S. be the first nation
to adopt a federal Homeless Bill of Rights?
[Discuss reciprocal influence theory (crude approximation of
reciprocal influence theory in leadership studies. Cite Lunenburg.)
Conventional wisdom that federal constitution is a charter of
negative rights, but increasing debate. Persuasive and persistent
debate over whether constitutional positive rights. States as the
laboratories of democracy. States as more embracing of positive
rights; more open to amendment. Cite Neuborn and Hershkoff.
Influence of state construction of rights on federal constitutional
practice; some constitutional scholars locate the source of the
federal constitution in state ratifications. Cite Hershkoff. Not to
suggest that homeless bills of rights will influence a decision to
amend the federal constitution. Instead, look at the influence of
state statutory progress on federal statutes. Hate crime laws as an
example: state laws as the template. Ultimately, if enough states
pass a homeless bill of rights, this could influence the development
of federal statutory law. Federal statutes that advance the rights of
the homeless could represent incremental progress, including
support for efforts to qualify the homeless as a suspect class
(because existing rights schema counts toward suspect
classification).]
CONCLUSION
[The implications of homeless bills of rights on a homeless
rights revolution.]
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Ultimately, homeless bills of rights are more likely to have an
incremental social and normative impact, as opposed to an
immediate legal impact. This prediction is just as grounded in legal
theory as it is grounded in the unfortunate reality that society (and
its proxies in all governmental branches) still suffers from
significant biases against the homeless. Even so, homeless bills of
rights are a critical, if only incremental, step to advance the rights
of one of the most vulnerable segments of contemporary society.
Perhaps as significantly, these new laws present an opportunity to
impact American rights consciousness.
The emergence of
homeless bills of rights may encourage domiciled Americans to
confront—and perhaps one day, overcome—our persistent, deeplyrooted biases against the homeless.
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APPENDIX: TABLES
TABLE 1: DIFFERENCES IN LANGUAGE BETWEEN RHODE ISLAND’S
ORIGINALLY INTRODUCED BILL AND THE ULTIMATELY ENACTED BILL.
146
ORIGINALLY INTRODUCED:
SUBSTITUTE A
ULTIMATELY ENACTED:
SUBSTITUTE B
34-37.1-3(2): “Has the right to equal
treatment by all law enforcement agencies,
without discrimination on the basis of
housing status, including the right to be
free from searches or detention based
upon his or her actual or perceived
housing status”
34-37.1-3(2): “Has the
right to equal treatment
by all state and
municipal agencies,
without discrimination
on the basis of housing
status”
34-37.1-3(4): “Has the right not to be
subject to criminal sanctions for resting or
sleeping in a public place in a nonobstructive manner when there is no
available and accessible shelter space”
34-37.1-3(7): “Has the right to protection
from disclosure to law enforcement
agencies without appropriate legal
authority his or her records and
information”
Removed in entirety.
146
34-37.1-3(6): “Has the
right to protection from
disclosure of his or her
records and information”
Emphasis added.
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TABLE 2: HOMELESS BILLS OF RIGHTS PROVISIONS
California, separated to the right, offers a broader point of
comparison to the Rhode Island bill and those modeled on Rhode
Island’s. Puerto Rico is excluded because it is a different type of
legislation altogether and does not bear many substantive similarities to
the mainland bills.
Key
P1 – Proposed legislation
P2 – Substitute legislation
L – Engrossed legislation
X – Not included in legislation
Date
introduced
Status
Right to…
Housing
status
definition
Hawaii
1/23/13
Illinois
1/30/13
Connecticut
2/15/13
Oregon
2/21/13
Vermont
3/12/13
Missouri
3/13/13
California
12/3/12
Judiciary
Committee
Awaiting
Gov.
signature
Law
Introduced
Introduced
Judiciary
Committee
Suspended
X
P1, P2
removed,
L
replaced
P1, P2, L
P1, P2, L
P1, P2, L
altered
P1
P1
P1
P1, P2
P1, P2, L
P1, P2, L
P1
P1
P1
P1
P1
P1
P1, P2, L
P1
P1
P1
P1, P2, L
P1, P2
specifies law
enforcement,
L
P1, P2
P1, P2, L
P1
P1
P1
P1, P2
Move freely
Equal
treatment
X
P1
Seek/maintain
employment
P1
Emergency
medical care
Vote
Information
disclosure
protection
Personal
property
privacy
Attorney’s
fees
Public notice
P1
P1, P2
removed
“seek”,
L enrolls
P1, P2, L
P1
P1
P1, P2, L
P1, P2, L
P1, P2, L
P1, P2, L
P1
P1
P1
P1
P1
P1
P1, P2
P1, P2, L
removes
P1
P1, P2, L
P1, P2, L
P1
P1
P1
P1, P2
P1
P1, P2, L
X
X
X
P1
P1, P2
X
X
X
X
X
X
Civil
P1
P1, P2, L
P1, P2, L
changed
“shall” post
notice to
“may”
X
P1
P1
P1
P1, P2
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enforcement
Criminal
enforcement
X
X
X
X
X
X
X
P1 Seems
to have
hate crime
piece
X
Keep
property in
public
Immunity for
state workers
helping
homeless
Counsel
X
X
X
X
X
X
X
X
X
X
P1, P2
removes
X
X
X
X
X
X
X
X
X
P1
X
X
X
X
X
X
X
X
X
X
X
X
P1
P1, P2
removes
P1, P2, L
removes
P1, P2
removes
P1, P2, L
Enrollment of
kids in school
School
supplies
Forbids
refusal to rent
or sell
property
Share/give
food
Clean
restrooms
Income for
survival
Restitution
for loss of
property
Free from
arbitrary
arrest
Affordable
housing
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
P2, P3
removes
X
X
X
X
X
X
P1, P2
removes
Clean
temporary
housing
Refuse
service in
shelter
Occupy
vehicles
Rest in public
X
X
X
X
X
X
P1, P2
removes
X
X
X
X
X
X
P1, P2
X
X
X
X
X
X
P1, P2
X
X
X
X
X
X
Conduct life
sustaining
activities in
public
X
X
X
X
X
X
P1, P2 adds
sleep, L
removes sleep
P1, P2
removes
P1, P2, L
removes
P1, P2, L
removes
P1, P2
removes
P1, P2
removes
P1, P2
removes
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Practice
religion in
public
Be selfemployed
Medical
facilities
Hygienic
facilities
Hygienic
provisions
Clean water
X
X
X
X
X
X
P1, P2
X
X
X
X
X
X
P2
X
X
X
X
X
X
X
X
X
X
X
X
P1, P2
removes
P1, P2
X
X
X
X
X
X
X
X
X
X
X
X
P1, P2
removes
P1, P2
removes
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