COMMENTARY ON SOCIAL POLICY : Punishing Homeless for Living: Still Cruel, but Not Unusual : Cities try to make the problem go away by banning ‘campers.’ What the homeless need is more help.

In Orange County last month, the phrase “the crime of poverty” took on a sinister new meaning for the poorest of the county’s citizens. On May 18, the City Council of Santa Ana enacted an ordinance that will make it unlawful for homeless persons to live within the confines of that city.

Within the last two months, Santa Ana, Fullerton and Orange have all adopted ordinances that prohibit camping in all public areas. As defined by Santa Ana and Orange, unlawful “camping” includes sleeping, using personal property or simply living outdoors.

In combination with state laws that punish individuals who trespass on private property, these laws effectively make it unlawful for homeless persons to remain within Santa Ana and Orange.

The impact of the ordinance adopted by Fullerton is less clear, but the motive behind each of these ordinances is plain. Increasingly, cities throughout Orange County are attempting to shield themselves from social problems associated with homelessness.

Official efforts to drive the homeless from American cities have become a nationwide phenomenon. In January, 1990, police officers in Miami roused seven homeless people sleeping in a local park, handcuffed them, dumped their belongings into a pile and set the pile ablaze.

In New York City, police have repeatedly clashed with the homeless, often violently, during sweeps designed to drive them from Tompkins Square Park. Officials in Phoenix have shut down facilities and programs designed to shelter and feed the homeless. Two years ago, the mayor of Philadelphia announced that police would no longer permit homeless people to dwell in downtown Philadelphia from 6 a.m. to 10 p.m. and that street sweepers would remove their possessions.

In Santa Ana, official efforts to drive the homeless from cities have persisted over the course of the past four years. In 1988, the city formed a vagrancy task force whose stated mission was to move so-called “vagrants” and their possessions out of Santa Ana by continually removing them from places they ordinarily frequent and from city facilities that offer refuge to the homeless.

At the recommendation of this task force, Santa Ana began confiscating and destroying the possessions of the homeless. Santa Ana subsequently paid $50,000 to settle lawsuits brought by homeless persons whose property was destroyed by city employees.

On Aug. 15, 1990, police officers arrested 64 homeless persons in Santa Ana’s Civic Center. Police officers stationed atop buildings spotted homeless individuals with binoculars and radioed their location to officers patrolling the Civic Center. Officers on the ground arrested homeless individuals, handcuffed them and drove them to Eddie West Field for booking and fingerprinting. At the stadium, police officers chained the homeless to benches for up to six hours without food or water.

A year later, the city paid $400,000 to settle lawsuits brought by homeless persons arrested during the course of this arrest sweep.

Over the past decade, the number of homeless people living on the streets of this country has skyrocketed. From 1981 to 1989, the number of homeless people living on the streets of New York City more than tripled. Orange County now has an estimated population of 12,000 homeless men, women and children.

As the problem of homelessness has become a seemingly permanent part of American life, public attitudes toward the homeless have hardened.

More and more, the homeless are no longer perceived as individuals. Instead, city officials increasingly view the presence of the homeless in their cities simply as an aesthetic blight and a sanitation problem. Such attitudes have led to the enactment of anti-camping ordinances in Santa Ana, Orange and Fullerton.

In defending these ordinances, city officials argue that they have a legitimate interest in preserving public property that is served by prohibiting camping on public property.

Unlike private landlords, however, city governments bear constitutional responsibilities to individuals affected by their actions. For this reason, the cities’ interest in preserving public property must be balanced against the rights of the homeless to exist within their communities.

The interests of cities in regulating their property cannot justify passage of laws that effectively make it illegal to be homeless. For a person who lacks funds to obtain housing on private property, a ban on living outdoors on all public property within a city constitutes effective banishment from that city. Such banishment violates the rights of the homeless to freedom of movement, a right protected under the Constitution.

Punishment of the condition of homelessness is also cruel and unusual punishment. Thirty years ago, the Supreme Court struck down as cruel and unusual punishment a California law that provided criminal penalties for drug addiction. In concluding that California could not lawfully punish a drug addict for his condition, the Supreme Court observed, “Even one day in prison would be cruel and unusual punishment for the ‘crime’ of having a common cold.”

Similarly, for individuals who lack funds to obtain housing in Orange County, even one day in prison would be cruel and unusual punishment for the “crime” of being homeless.

Anti-camping ordinances that effectively banish the homeless from cities in Orange County will not go unchallenged. The homeless must be permitted to peacefully carry on those activities necessary for basic survival without fear of arrest at the whim of any police officer. A civilized society can offer them no less.