Violence and Homelessness

Dom Rottman

21 December 2019

I am not usually one to celebrate victories within our legislative or judicial systems, in part because they rarely happen or are double-edged, or because their impact is limited or negligible. However, on Monday, the 16th of December 2019, the Supreme Court declined to hear an appeal in a case originating in Boise, Idaho, in which the 9th Circuit Court of Appeals ruled that enforcing laws that criminalized sleeping on sidewalks or other public spaces constituted “cruel and unusual punishment.”

This limits, if only narrowly, the power of the state to police with force and violence individuals who have been so dispossessed to the point that they no longer have a place to sleep. I consider this an overall win, as it reduces physical or financial harm inflicted on the most vulnerable in our society. Others, such as Ben Shapiro, are concerned that the inability to police homelessness will only perpetuate it as an issue and even exacerbate it, leading to “the spread of disease, the degradation of public spaces and an increase in street crime.”

To which I initially say: fair enough–to a certain extent. It is true that preventing the policing of homelessness will not solve the issue of homelessness itself. However, Shapiro contends, and is surely not alone in contending, that issuing fines for individuals sleeping on sidewalks or other public spaces is not “cruel and unusual,” in part because “being homeless is not a ‘state’ of being, “Shapiro writes. “It is an activity and can certainly be regulated.”

This is not so obviously true. The very way in which we use language to describe homelessness–whether we use “x is homeless"or the allegedly more politically correct “x is experiencing homelessness”–suggests that homelessness is a state of being. The English language even compels Shapiro to write that “being homeless is not a state of being”–which, if one thinks about it, is a funny thing to say. To say that being something is not itself a state of being is to make a claim which is not self-evident.

That Shapiro’s claim is not self-evident doesn’t make it untrue, but makes it vulnerable to scrutiny. Shapiro goes further, however, and says that homelessness is an activity, and one which can and should be regulated. From one perspective, this is simply wrong: whether or not I have a home can be patently true or untrue regardless of what I am doing. We do not think of being hungry and without food as an activity, nor do we think about being unemployed as being an activity. There are certain activities which the homeless typically engage in, yes, such as sleeping on sidewalks. However, being homeless does not necessarily mean doing so–even those with homes could sleep on the sidewalks or in public spaces, though it would certainly be unusual of them to do so.

The overall point is that the state is not justified in fining or otherwise violently inflicting harm on the homeless, “cruel and unusual” or otherwise. For one thing, policing the sidewalks and park benches by fines or otherwise is solely an exclusionary activity that does not solve homelessness any more than letting them be would–but at least with the latter, harm is not extended. For another, such policing redefines public spaces as enclosures that cannot actually be publicly used as space, but only in certain ways as defined by the law and surrounding private entities.

To police the homeless in such a manner is to say that the state has chosen to protect capital and its interests–in the name of the public which, apparently, the homeless are excluded from–over doing justice to the dispossessed. That’s not to say such a reality is inherently reasonable or unreasonable–it depends on one’s point of view. However, it is regardless the naked reality of the relationship between the state and the dispossessed, the homeless in this case. It is the reality everyone must reckon with.

It is not shocking that the law would rather hide problems than solve them. This is not for lack of trying, but consequent of the fact that the law is an entity which operates mechanistically by force, and therefore frequently fails to address socioeconomic ills which cannot be solved by force. The best it can do is to create the appearance of success by enclosing public spaces which forcibly exclude the dispossessed and therefore effectively deny them membership of the public. A society in which public spaces must be used for the beds of the dispossessed is one in need of repair, and concealing the issue will only make it more difficult at the expense of harmed lives and bodies.