Essay on Benefits of Criminalizing Homelessness
I chose the legal philosophy of Legal Realism, as I more closely identify with this fundamental form of thought. Defined, this is a legal theory that law derives from prevailing social interests and public policy. With this theory, the law considers not only abstract rules but also social interests and public policy when deciding a case. Realists hold a few things to be true; they believe that law is not a scientific enterprise in which deductive reasoning can be applied to reach a determinate outcome in every case. Instead, most present hard questions that the law must resolve by balancing the interests of the parties and ultimately drawing an arbitrary line on one side of the dispute. This line is typically drawn by the political, economic, and psychological proclivities of whoever the presiding judge is. Plain realism is the idea that the world has a set reality that exists separate from the perceptions of the people who live in it. According to this perspective, there is an objective reality that exists regardless of whether or not it is acknowledged. For example, this logic suggests that if a tree fell in the woods and no one was around to hear it, it would still make a noise. Critical realism, on the other hand, sees the world as the product of structures that cannot be observed but must be understood to fully understand social and natural relationships in the world. This view offers a sort of middle-ground approach between the ideas that cause can only exist if they are statistically observable, and that reality does not exist beyond our perceptions.
I’ll begin with the bullet points of Legal Realism:
- Legal decisions are based on preferred outcomes, not formal legal principles.
- Factual context matters more than strict adherence to universal rules.
- Law should be concerned with rational thought and empirical data, not ancient moral precepts.
- Legal justifications are often pretexts for underlying motivations and outcomes.
When discussing jurisprudence and addressing how this legal philosophy’s issues and conditions were observed during this course, I found myself asking “How does legal realism benefit the greater good of society?”
During our residency, we focused primarily on the unhoused and how these different legal philosophies could tackle this ongoing systemic tragedy. Some of the main ways to combat homelessness we discussed were: Housing, integrating healthcare, building career pathways, fostering educational connections, strengthening crisis response systems, reducing criminal justice involvement, and building lasting community partnerships.
There is no specific resolution or solution to preventing homelessness that can be easily addressed. There is no single way to solve the issue of the unhoused. Perhaps the best thing we can do is try to determine which major issues are more prevalent in our communities. For example, housing might be a problem in some communities and not particularly problematic in others. There is no specific set of solutions that can address homelessness in its totality, and the sooner we realize that the sooner we can adjust the way we address homelessness and respond to it, now and in the future.
In my work and experience, these insights and lessons on law and society affect my professional work in my career in a variety of ways. As a former law enforcement and a current corporate investigator, I have seen firsthand the trials surrounding the homeless plight and its inevitable societal effects. Homelessness and the criminal justice system are deeply intertwined. People experiencing homelessness are more likely to interact with the justice system because being forced to live outside can lead to citations or arrests for low-level offenses like loitering or sleeping in parks. People currently or previously involved in the justice system, who are often disconnected from support and face housing and job discrimination, are more likely to experience homelessness.
Without investments in evidence-based solutions, communities often use police to respond to people living outside, criminalizing homelessness and issuing citations and arrests for minor “public nuisance” crimes—such as camping, loitering, and public urination—that people wouldn’t have to endure if they had a place to call home. Such frequent interactions with the justice system can trap people in a homelessness-jail cycle, rotating them in and out of jails and emergency public services like shelters, emergency rooms, and detox facilities. This cycle does nothing to help people access the housing and services they need, such as mental health or substance use treatment.
laws that restrict behaviors in which people experiencing homelessness must engage to survive, as well as the practices used to enforce these laws, constitute what the report refers to as “making homelessness a crime” or “the criminalization of homelessness.” For many who are not homeless before entering the criminal justice system, many will enter homelessness following release from jail or prison. Many have no place to go upon release. They lack resources due to losing touch with family or friends, as a result of long-term incarceration, and due to burning all of their bridges. Many are denied services and resources due to their criminal record. Some who have places to live face policies or practices, including restrictions on access to subsidized housing, that either inadvertently or intentionally eliminate these options.
Streamlining housing resources to this population addresses homelessness among some of our most vulnerable people, but it will also reduce recidivism, contributing to overall safer communities. Reforms to halt the cycle of homelessness and jail are urgently needed to protect the health, safety, and dignity of communities. With laws criminalizing unavoidable aspects of homelessness and their pervasive enforcement on the rise, people experiencing homelessness, especially Black people, will continue to be drawn into the criminal legal system at alarming rates. Once caught in the legal process, they will continue to face significant challenges at each point in the system, where the mechanisms of justice make few accommodations for those without housing. Without thoughtful policy and practice change, systems in the United States will continue to bar people experiencing homelessness from interacting with the justice system as other members of the community do. Those without housing will continue to experience increased complications in resolving minor legal issues and appearing in court, face higher risks of languishing in pretrial detention, and be more likely to receive longer sentences. All of this will make basic efforts to survive even more difficult on release from incarceration. The time has come for local justice systems to take immediate action to halt the cycle of homelessness and entanglement with the criminal legal system. This begins with acknowledging the harms perpetuated by the current system, addressing deepening racial disparities, and enacting urgently needed policy and practice changes.