Abstract

Excerpted From: Siya Hegde and Carlton Martin, With Liberty and Justice for All: The Case for Decriminalizing Homelessness and Mental Health in America, 21 Indiana Health Law Review 249 (2024) (158 Footnotes) (Full Document)

I remember the heartbreak I felt when my best friend deserted me shortly after our wedding ... I spiraled into an even deeper depression, leading to my resignation from Apple and eventual homelessness in North Carolina. Events turned even more harrowing when an unfortunate encounter with the police led to my hospitalization and official diagnoses of psychosis, schizophrenia, and bipolar disorder. All these experiences hammered home the true weight of loneliness.

Although the study of America's homelessness epidemic has deepened in the past two decades, public narratives about homelessness are misconceived and inconsistent. When we look beyond the numbers and delve into accounts of advocates like Jha'asryel-Akquil Bishop, whose lived expertise offers a heartbreaking perspective of homelessness, policing, and mental illness, we realize how increased access to voluntary, community-based mental health supports and decriminalization are necessary means to ending homelessness. Personal accounts also reinforce how conditions of homelessness are intrinsically intersectional. Predominantly Black and Brown racial and ethnic groups suffer the highest incidences of homelessness and have historically been the most susceptible to land and property exclusion, displacement, eviction, and housing discrimination. Gender-based subgroups, such as members of the LGBTQIA community, also suffer disproportionately higher rates of unsheltered homelessness and “may not be equally benefitting from government investments in solutions to homelessness.”

Central to each account is the reality that one's experience of living unsheltered can, and often does, adversely affect their health, safety, and security. Living unsheltered can lead to higher rates of chronic disease (i.e., COVID-19, tuberculosis, and lung disease) and exacerbate pre-existing serious mental illness. Living unsheltered also heightens one's risk of being physically or sexually victimized, robbed, or otherwise subjected to additional traumas.

This article examines the criminalization of people with mental health disabilities who experience homelessness, incorporating various race and poverty factors associating housing with health. Section II critiques the judicial landscape of homelessness criminalization by first turning to the seminal decisions of Martin v. Boise and Johnson v. City of Grants Pass, which have shaped the past five years of homeless rights law and policy. It then assesses how the insufficient framework of the Equal Protection Clause of the federal Constitution limits courts' abilities to protect the rights of poor people experiencing homelessness and resolve related socioeconomic issues.

Against this backdrop, Section III details the history of homelessness criminalization, focusing more narrowly on the criminalization of mental health and the emergence of involuntary civil commitments as a proxy of the criminal legal system. The section will address the involuntary mental health directive promulgated in New York City and California's CARE Act, showcasing the different legal standards governing the commitment processes of people with mental disabilities who experience homelessness in both locations, and the increased role of law enforcement as first responders. Our analysis of these involuntary commitment schemes critiques the judicial and policymaking authorities responsible for implementing them. We also incorporate findings from our recent related advocacy before the United Nations, emphasizing how such practices that criminalize mental health also violate key civil and political rights--i.e., the right to life--under international law.

Section IV comments on what “justice” should look like outside the utility of judicial, legislative, and other political bodies when addressing the root causes of homelessness and the criminalization of mental health. Our policy recommendations and philosophies draw from a grounding poverty abolitionist framework and set of international human rights principles, with hopes of advancing anti-policing, humane housing solutions across the homelessness decriminalization and eradication movement. Section V concludes.

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In most cases, statistical findings interpreting decades of epidemiological and sociological research do not capture the multitude of civil consequences and systemic institutional barriers that criminalize rather than humanize people experiencing homelessness. Many of these individuals, particularly those with health conditions, are victim-blamed for their own circumstances of poverty. Society has stigmatized their mental health disabilities as the drivers of homelessness, labeled them as dangerous violent criminals who make communities less safe, and treated them as pariahs who are less worthy and less deserving of the most basic and essential human needs.

Imagine a world where the U.S. adopted a human rights framework as the model for building affordable, adequate housing. Would homelessness still be on the rise? Imagine if Jha'asryel-Akquil Bishop was met with a plan to be housed and healed, rather than handcuffed and forcibly hospitalized. Imagine if instead of the “coercive compassion” of California's CARE Act or New York City's Mental Health Involuntary Removals, there was a directive that criminalize people experiencing homelessness, our executives, legislators, and other policymakers exercised true compassion by fully embracing policies prioritizing permanent supportive housing over handcuffs.

Ending homelessness is not just about curbing street homelessness. Nor is it about providing just any physical structure or shelter to ensure protection from the elements. Rather, ending homelessness demands deliberately addressing its root causes and legacies--the historical structural racism, gender and sex-based discrimination, and ableism that not only affect one's housing conditions, but the health of one's body and mind. It demands a restructuring of the legal system that has failed to remedy structural inequalities, and funding vital health and community-based services and expanding the availability of affordable housing.

All of this requires accountability from our elected officials and those equipped with enforcing the law to ensure that everyone has a fundamental human right to adequate housing. Getting there requires courage. Courage to view our neighbors who experience homelessness as an extension of ourselves. Courage to reject the loud and dehumanizing calls to sweep those neighbors from public view and into a concrete cell, a dangerous and uninhabitable congregate shelter, or on the fringes of town for “someone else” to deal with. And lastly, courage to expand our vision and reimagine a society where this is all possible. The strong will of the people can make it so.

Siya (she/her) is a civil and human rights lawyer at the National Homelessness Law Center (NHLC), based in New York City, where she is building strategic litigation and policy advocacy capacity in the movement to decriminalize homelessness and make housing a human right.

Carlton is the Director of the Homeless Persons Representation Project's Montgomery and Prince George's County Office.