TWN Info Service on UN Sustainable Development (Jul24/01)
3 July 2024
Third World Network

UN: Stop the criminalization of homelessness and poverty, say experts
Published in SUNS #10036 dated 1 July 2024

Penang, 28 Jun (Kanaga Raja) — There is a need for governments to scrap “cruel and counterproductive” laws that are leading to people living in homelessness and poverty being arrested, fined or be subjected to degrading punishment for carrying out activities in public that are vital for their survival.

This call was made by the UN Special Rapporteur on the right to adequate housing, Balakrishnan Rajagopal, and the UN Special Rapporteur on extreme poverty and human rights, Olivier De Schutter, in a study presented to the current 56th regular session of the UN Human Rights Council in Geneva.

The study (A/HRC/56/61/Add.3) by both UN experts examines a double victimization of persons experiencing homelessness and poverty – laws, policies and practices that penalize and criminalize life-sustaining activities in public spaces, and is based on over 130 submissions from all world regions and consultations held with States, local governments, human rights institutions, civil society organizations and academic experts.

The study follows from a recent submission by the two UN experts in a US Supreme Court case, arguing that persons living in homelessness cannot be penalised for camping or sleeping in public spaces when there are no alternatives available.

Relying on the criminal justice system to address the consequences of poverty and homelessness serves only to penalize individuals for structural inequality, social exclusion and their fundamental denial of rights, they said.

“A punitive or carceral approach that penalizes persons in precarity for begging, sleeping, or working in public spaces also poses a significant economic cost to the State that should be redirected to measures that are effective in preventing and ending homelessness and reducing poverty.”

Such a punitive approach leads to a cycle of circular movement of individuals through poverty, homelessness and the criminal justice system and cannot be seen as justifiable, said the experts.

The study by the two experts said homelessness and poverty can be addressed through transformative approaches that facilitate access to adequate housing, decent work, healthcare, training and social protection, not by making being homeless or living in poverty a criminal offence.

“Instead of addressing the global affordable housing and inequality crises, which are primarily responsible for homelessness, governments are increasingly turning to outdated and vague vagrancy laws, many of which have their roots in colonial rule, to move people off the streets and make them disappear,” Rajagopal said.

“Homelessness is a sign of State and social failure, rooted in policy and institutional factors. However, it is politically convenient, and bows to populist pressure, to criminalize vulnerable people for engaging in activities, such as sleeping in public, that the rest of us have the privilege of carrying out in the privacy of our own homes,” he added.

“These laws will not solve homelessness or poverty. They are in direct violation of international human rights and must be urgently repealed.”

“Homelessness and poverty are growing because of political choices that are making a decent income and adequate housing a distant dream for millions,” Rajagopal said. “This must be addressed. Relying on law enforcement will not solve the problem.”

The study finds that criminalising people who are living in homelessness does not reduce the number of people in street situations, but instead pushes them further into poverty.

“These laws result in a double punishment: people are punished first when they are pushed into homelessness and again when they are sanctioned. They are cruel, counterproductive and a disproportionate response even to any legitimate safety or public health concern presented by homelessness,” De Schutter said.

He said added to the high human cost of criminalising individuals for behaviours that should not be subject to punishment, is the huge cost to the taxpayer of law-enforcement, fine collection, judicial sanctioning, detention or imprisonment – resources that would see a much higher return if invested in long-term, safe housing and social services.

CRIMINALIZING HOMELESSNESS & POVERTY

According to the study, persons experiencing homelessness and poverty are extremely vulnerable to human rights violations. Homelessness is, by itself, an affront to human dignity and a serious violation of the right to adequate housing and other human rights.

It said that States have an obligation to prevent and eliminate homelessness, including by guaranteeing access to safe, affordable, and adequate housing. Similarly, poverty is a cause and consequence of a broad range of human rights violations, and States have an obligation to end and eradicate poverty.

According to the study, laws which criminalize homelessness and poverty include:

(a) Vagrancy laws which criminalize a person for failure to provide “a good account of themselves”, having no settled or fixed abode, or having no means of subsistence. Vagrancy is criminalized either through colonial-era laws that contain vague and arbitrary prohibitions such as being a “rogue”, a “vagabond”, “idle or disorderly”.

(b) Modern laws which prohibit behaviour-based conduct and criminalize activities such as camping, sleeping or erecting shelter, eating, washing or bathing, storing personal effects in a public space, causing noise disturbances or obstructing a road, footpath or entrance to a public or private building.

(c) Regulations for environmental, public health or waste management, that prohibit littering and the unauthorised disposal or collection of waste or garbage, public washing or bathing, eating, drinking or cooking in a public space, urinating and defecating in public, or washing, drying or spreading clothes or bedding.

(d) Prohibitions against begging, which criminalize requests for money or other items of value. This can include blanket bans on all forms of begging, begging in particular zones, or the prohibition of “active” begging.

(e) Prohibiting informal labour activities in the public domain that sustain livelihoods, such as hawking, vending, trading, waste collection and sorting, car guarding and washing, or providing informal transport.

(f) Laws against squatting, such as the unlawful occupation of uninhabited public and private buildings or land for survival needs due to a lack of access to any affordable alternative.

(g) Bans or time restrictions on parking vehicles or caravans in public spaces, prohibiting camping in a vehicle, tent, caravan or any other type of temporary or provisional accommodation.

Many of these laws ostensibly aim at maintaining public order and public health, protecting the environment, or reducing visible homelessness, said the study.

“They often appear neutral: they refer to certain behaviours and do not explicitly target persons experiencing homelessness or people who rely on the street for their survival.”

Yet, it said while the objective of preventing certain activities may be legitimate from a public order or health perspective, it often results in criminalizing people for having no “home” in which they can sleep, eat or perform hygiene-related activities.

Largely focusing on the criminalization of persons using public spaces, the study said that the prohibition of life- sustaining activities exposes persons experiencing homelessness or poverty to the risk of further rights violations.

It said initially punishment usually takes the form of a fine, but can also include cascading consequences such as eviction, arrest, deportation, forced institutionalization or imprisonment.

The experts said when people are unable to pay a fine and subjected to further penalties for failure to pay, people can be imprisoned for minor offences.

“This raises serious human rights concerns relating to the proportionality of the sanction, cruel and degrading treatment or punishment and equality before the law. Alarmingly, fines are also imposed for conduct that should not be subject to sanction at all.”

People in street situations are also at elevated risk of being subjected to arbitrary treatment by public officials or to extortion or physical abuse by private persons.

Human rights mechanisms of the United Nations have repeatedly expressed concern about the criminalization of persons experiencing homelessness or poverty, the experts noted.

“While many States have repealed or amended laws criminalizing begging or other life-sustaining activities, administrative or criminal sanctions remain common in local regulations.”

There is a growing international consensus that criminalizing life-sustaining activities in public spaces is not acceptable, they added.

They said that this consensus is reflected in the New Urban Agenda, the Guiding Principles on Extreme Poverty and Human Rights, the Guidelines on the Implementation of the Right to Adequate Housing, resolutions of the Human Rights Council, reports by the United Nations Secretary-General, recommendations of United Nations human rights mechanisms, the United Nations System Common Position on Incarceration, and the principles issued by the International Commission of Jurists.

At the regional level, the African Commission on Human and Peoples’ Rights has adopted Principles on the Decriminalization of Petty Offences, and the African Court on Human and Peoples’ Rights has issued an advisory opinion on vagrancy laws. The European Court of Human Rights has found that blanket bans on begging violate the European Convention on Human Rights, in particular, when begging is the only option to ensure survival. Similarly, the Inter-American Commission on Human Rights has enquired into human rights violations experienced by informal traders and waste pickers working in the street.

The study said laws criminalizing life-sustaining activities in public spaces may violate a range of human rights, including the prohibition of cruel, inhuman or degrading treatment or punishment, the right to an adequate standard of living, the right to life, the right to the highest attainable standard of physical and mental health, the right to liberty and security, the right to liberty of movement and freedom of choice of residence, the right to privacy, freedom of assembly, and the right to work and to just and favourable conditions of work.

Continuous harassment from law enforcement officials has a harmful impact on people who rely on public places for their survival, and can re-traumatise people already experiencing trauma or mental health conditions, it said.

The experts said that a law enforcement approach to addressing the consequences of homelessness and poverty is also counterproductive, with the impacts of enforcement perpetuating cycles of poverty, social exclusion and discrimination, which can impede access to economic and social rights guaranteed under the International Covenant on Economic, Social and Cultural Rights (ICESCR).

According to the study, the methods adopted for enforcing laws that prohibit life-sustaining activities include evictions, fines, detention and imprisonment, and forced institutionalization.

HISTORICAL LEGACIES

The study said that the criminalization of homelessness and poverty has a long history, rooted in various forms of structural discrimination and oppression.

“The laws have historical markers that are linked to laws and policies of industrializing states which sought to regulate and punish the activities of marginalized people for reasons related to the availability of cheap labour, crime prevention, morality, and public health.”

It said that such laws, such as the Poor Laws of 1834 of the United Kingdom targeted the poor and other marginalized or socially excluded groups, subjecting them to institutionalization, workhouses, detention, imprisonment or enslavement.

“To justify such inhuman and degrading treatment, those deviating from prevailing social norms were often accused of being the source of disease, deviance, or crime.”

The study said in States which were subjected to colonial occupation, vagrancy laws can be traced back to legacies of colonialism, slavery and apartheid, with many of these laws remaining in force.

The experts said that vagrancy is a broadly defined offence which was intended to segregate and control the use of public space in a way that penalized, punished, subjugated, and excluded people on the basis of their race, ethnicity, gender, socioeconomic status, or other contextual marker of social exclusion or vulnerability.

The English Vagrancy Act of 1824 and the French Penal Code of 1810, among others, became a blueprint for similar laws in colonised States, they pointed out.

While the contemporary versions of such laws are usually framed in neutral language, they continue to have the same effect of segregating and controlling the use of public space on the grounds of discrimination and social stigma, said the study.

The experts said States are required to guarantee human rights to all individuals within their territory without any distinction, including in relation to their social origin, property, birth or other status, which includes their social and economic situation, their housing, health or residency status.

Yet, laws that criminalize persons or the behaviours of persons in public spaces are often discriminatory as they either target, or have a disproportionate impact on, groups protected against discrimination in human rights law.

Discrimination, stigma and social exclusion are all drivers of poverty and homelessness, as well as consequences of poverty and homelessness. Those who face discrimination on the grounds of race, ethnicity, place of origin, age, family status, gender, mental or physical disability, health conditions, sexual orientation and gender identity are at a higher risk of becoming homeless or of falling into poverty.

“Once homeless or destitute, they face additional layers of structural discrimination, including within justice systems.”

As marginalized groups are more likely to live in poverty than the general population, they are disproportionately affected by laws criminalizing conduct associated with poverty and homelessness, said the study.

For example, in the United States of America, African Americans constitute only 12 per cent of the population, but account for 37 per cent of persons experiencing homelessness.

Among those, black people experiencing homelessness were almost 10 times more likely than white people to receive a camping citation.

The study said the risk that African Americans are disproportionately exposed to the criminal justice system for offences prohibiting camping or sleeping in public places is real and must be urgently addressed.

It also said that migrants, including undocumented migrants, refugees, asylum seekers, and internally displaced persons experience multiple forms of discrimination in securing formal employment and temporary or permanent housing, which heightens the risk of homelessness and poverty.

The study said that enforcement of laws associated with homelessness or poverty can have dire consequences, including deportation or permit restrictions, and the possibility of harsher criminal sanctions for lower-level offences because of immigration or refugee status.

“Reliance on the criminal justice system to respond to poverty and homelessness is not a sustainable approach to addressing social issues or to enhance public safety,” said the experts.

Rather, it diverts scarce public resources away from effective and evidence-based crime and violence prevention measures, increases the likelihood of re-offending (recidivism), and is a threat to public safety, they added.

In many States, local government and law enforcement officials come under pressure from citizens to address increased criminality – whether real or perceived – or from residents and business people to “clean the streets”.

Already overstretched police forces are particularly prone to engaging in sweeping operations against people in poverty, resulting in mass arrests of persons in street situations, in order to demonstrate that they are “tough on crime”.

In addition, the cost of criminalization often outweighs the economic costs and social resources required to address the root causes of poverty and exclusion, including the provision of affordable housing, social services and social welfare, said the study.

“Addressing homelessness through law enforcement can cost two to three times more than providing affordable housing and social services, which would address the underlying problems of homelessness and poverty, rather than punishing it.”

The experts said the US Inter-agency Council on Homelessness has acknowledged that “criminalization creates a costly revolving door that circulates individuals experiencing homelessness from the street to the criminal justice system and back.”

Germany dedicates EUR 200 million each year to enforcing the Criminal Code Violation of Fraudulent Use of Public Transport Services, with the majority of people affected being either unemployed, or without a permanent address.

The study said that processing fines results in high costs for national and sub-national governments, although a substantial proportion of all fines imposed on persons in precarity are never paid (more than 50 per cent in the city of Barcelona).

The enforcement of the prohibition of begging cost the Canton of Geneva CHF 1.22 million in policing costs between January 2008 and June 2011, around CHF 200,000 in the administration of fines, and CHF 1.8 million for related procedures before judicial tribunals, it noted.

These amounts did not include the imprisonment of offenders at an estimated cost of at least CHF 124.10 per person and day who were unable to pay their fines. In total, 13,634 fines were imposed against 1,516 offenders amounting to over CHF 1.6 million in fines and fees, but only CHF 35,117 in fines were collected.

Laws that criminalize homelessness and poverty do not substantively deter the activities of people who have no other choice but to carry out life-sustaining activities in public spaces, said the experts.

“Therefore, the laws cannot be justified as a proportionate response to the safety and public health challenges posed by homelessness as required under human rights law.”

Criminalization has the opposite effect of entrenching socioeconomic exclusion and marginalization, without evidence of the crime prevention value of these laws, they emphasized.

AN AGENDA FOR CHANGE

The search for alternatives to criminalization should start with a review of the laws in force, changing the way they are enforced, reviewing proportionality and impact of penalties, and ensuring that sufficient resources are available to the State to ensure the use of alternatives, said the study.

“Inclusive and meaningful consultations should identify effective alternatives to criminalization that will realize the right to adequate housing and to enjoy an adequate standard of living while meeting the objectives of public order and public health, consistent with human rights.”

This process should be participatory, involving people with lived experience of homelessness and precarity; law enforcement officials; housing, healthcare or social service providers; business actors, shopkeepers and street traders; and local residents, said the experts.

The Special Rapporteurs recommended a number of measures that States should take into consideration when designing and implementing alternatives to criminalization, all of which are underscored by the importance of participatory approaches that include the voices, experiences and needs of persons experiencing homelessness and poverty.

These measures include: repealing laws that criminalize life-sustaining activities; improving judicial review, access to justice and legal aid; implementing alternatives to detention; ending incarceration for failure to pay a fine; reforming law enforcement approaches; promoting equal access to public spaces; ensuring access to adequate housing for all; reforming the regulation of informal economic activities; and enhancing the role of regional and local governments. +