Anti-Okie laws. Sundown towns. Ugly laws.
These old vagrancy laws recall shameful periods in our history when communities selectively persecuted and punished migrants, people of color and the physically disabled. The U.S. Supreme Court struck down California's anti-Okie law, which made it a crime to bring anyone indigent into the state, in 1941. In a 1972 case from Jacksonville, Fla., the Supreme Court invalidated a local vagrancy ordinance because it encouraged arbitrary arrests, criminalized innocent activities and placed unfettered discretion in the hands of the police.
But those rulings weren't the end of vagrancy laws. In their latest iteration, they target homeless people. After homelessness began skyrocketing in the 1980s, cities responded with laws that criminalize basic life activities conducted in public like standing, sitting, resting or sleeping, and even sharing food with homeless people. As the crisis worsened in California — 22% of America's homeless population now lives in the state — cities have piled on more and more vagrancy laws.
According to a study being released this week by the UC Berkeley School of Law Policy Advocacy Clinic, 58 California cities have enacted hundreds of new laws since 1990 that single out or disproportionately effect homeless people; if current trends continue, they will add more than 100 new anti-homeless laws this decade. The average California city studied has nine such laws, a much higher average than studies have found in other states. Los Angeles and San Francisco lead the pack, with 23 separate restrictions each.
Statewide arrest data show that these laws aren't just for show. Although arrests are only the tip of the enforcement iceberg, more than 7,000 Californians were picked up for vagrancy in 2013 according to police agency reports to the FBI. Vagrancy arrests increased 77% in California from 2000 to 2012, while arrests for "drunkenness" and "disorderly conduct" declined by 16% and 48% respectively. In other words, vagrancy laws increasingly are being used to punish people's status — being homeless — rather than their behavior.
Although detailed and reliable local citation and arrest data are hard to come by — and are notoriously difficult to obtain from the Los Angeles Police Department — the study's analysis of enforcement patterns in San Francisco, Sacramento and San Diego shows that these laws are selectively enforced against homeless people.
These research findings mirror reports from homeless people themselves. The Western Regional Advocacy Project conducts street outreach and has surveyed thousands of homeless people in California since 2010. The results are staggering: More than four of five of homeless people report having been harassed, cited or arrested for sleeping in public. Nearly that many have been punished for sitting or lying down. More often than not, homeless people are harassed by police or private security guards without reference to any law at all.
Taken together, these trends paint a disturbing picture of a return to practices the Supreme Court declared unconstitutional more than four decades ago. In fact, state and federal courts have continued to grapple with these laws. Last year, citing the 1972 Jacksonville case, the U.S. 9th Circuit Court of Appeals struck down a Los Angeles municipal code prohibiting lodging in vehicles as unconstitutionally vague because it promotes arbitrary and discriminatory enforcement against homeless people and the poor. Just this month, a California appellate court allowed a lawsuit to proceed against the city of Sacramento for its selective enforcement of an anti-camping ordinance against homeless people. But hundreds of these laws remain on the books in California, and cities simply turn to other laws when one is invalidated.
In 2013, advocates campaigned for a statewide Homeless Bill of Rights that would have blocked the enforcement of local laws criminalizing activities that are unavoidable for people without shelter. The bill cleared the Assembly Judiciary Committee — where several committee members decried the criminalization of homelessness — but it died in the Appropriations Committee. This year, advocates are back with a "right to rest" bill that would extend basic human and civil rights protections to homeless people. Other states, including Oregon and Colorado, are introducing similar bills this month.
Passing a right to rest bill will require courageous political leadership, but it is a crucial step toward ending this appalling treatment of some of California's most vulnerable residents. One day we will look back at these anti-homeless laws, as we do now at other antiquated vagrancy laws, and wonder how we could have been so inhumane.
Paul Boden is the executive director of the Western Regional Advocacy Project. Jeffrey Selbin is a clinical professor of law at UC Berkeley and director of the Policy Advocacy Clinic.