CITIES ENACT ORDINANCES that target the behaviors of people living unhoused. Seemingly every aspect of daily life is subject to legal scrutiny. There are laws against sleeping, sitting, and lying down in public (sometimes referred to as “sit/lie” laws). There are laws against loitering and camping. It is often illegal to sleep in a car. Cities may outlaw pushing shopping carts or storing personal items in public space. Hygiene standards may be enforced by law. Panhandling is made a crime. Some cities even ban others from giving out food to unhoused people.
These kinds of laws are a crucial piece of our story. The central claim of this pamphlet is that design and law come together to unjustly and unethically push the unhoused out of shared public spaces. Homeless advocacy groups often point out that these laws do not have the effect of addressing the problem of homelessness but instead treat unhoused people as if they themselves are the problem. The threat of citation or arrest posed by laws like these forces unhoused people out of public areas and into the marginal spaces of the city. Antihomeless designs are often combined with these sorts of antihomeless laws to effectively remove the unhoused from view.
Although it is difficult to know whether antihomeless designs are being implemented by cities at an increasing rate, it is clear that many of these designs continue to be newly built and installed in cities across the globe. But in contrast, it is readily possible to track the rate of the enactment of antihomeless laws. For example, the United States has seen a sharp increase over the past few years.
Homeless advocates argue that laws such as those listed here amount to the criminalization of homelessness. When behaviors essential to an unhoused person’s mere existence constitute the grounds for arrest, then homelessness itself has been made a crime. This means that for many cities, one of the chief strategies for addressing the problem of homelessness is the attempt to process unhoused people through the criminal justice system. We should ask ourselves whether it is a just practice to approach homelessness as criminal behavior. We should consider the morality of arresting unhoused people simply for being unhoused, keeping in mind the harassment of unwarranted arrest and the fact that a criminal record makes it harder to find employment.
These laws and designs enter into what could be called a politics of visibility. Insofar as antihomeless laws and designs are successful in pushing the unhoused out of public spaces, an effect is to make the problem of homelessness itself less visible to the larger community. Many of the restrictionary design modifications under consideration here—the antisleep benches, the antipick garbage cans—are created with at least two things in mind: (1) prohibiting the usage preferred by some unhoused people and also (2) doing so without at the same time disrupting the smooth experience of the device in terms of its dominant usage. For example, antisleep features make it difficult to sleep on a bench while at the same time easy to sit. And they do these two things all while making it easy to overlook this very effort to prevent the sleep usage. That is, these designs make it easy to overlook the politics of the bench.
This combination of law and design can sometimes be so effective that it renders the entire problem of homelessness—and also the unhoused people themselves—invisible to others. This invisibility has the potential to lead the larger community to grow unaware of the problem or even to mistakenly assume that the problem is less severe than it actually is. If the problem of homelessness is never encountered in daily life, and nor are the mechanisms that drive away the unhoused, then it becomes easier never to think about the issue.
The unhoused are, almost by definition, an especially disenfranchised population and a vulnerable one, often stereotyped and scapegoated and often subject to the indifference or hostility of others in the community. But the unhoused do have at least some influence. They can organize politically, like anyone else, and establish allies. They can act as members of homeless advocacy groups. And the unhoused do maintain one important source of political capital within their everyday lives: their visibility. It is of course a fraught form of capital; being visibly unhoused can be dangerous and can draw unwanted attention from law enforcement. And the visibility of the problem of homelessness does not always call forth support from the larger community. Nevertheless, insofar as unhoused people are present in shared public spaces, the problem of homelessness is more difficult to forget about or ignore. Thus the combined strategy of implementing antihomeless law and antihomeless design yanks away this form of political influence.
Laws against panhandling are a paradigmatic example of these unethical and unjust dynamics. In public spaces, individuals should be free to speak to one another, within reasonable regulations against harassment and harm. Antipanhandling laws make it a crime to ask others for money. The particular ways such ordinances are written vary widely from city to city. Sometimes they outlaw “begging.” Sometimes they are effective citywide; other times they apply only to specific areas. In most cases, these laws unfairly target this particular form of public speech. While anyone may inquire about the time of day, or ask if you’ve heard the good news about his religion, the act of requesting a charitable donation is singled out as criminal. The decision to make only this particular type of request a crime is often exclusively a response to the fact that some people are made uncomfortable by the experience of interacting with an unhoused person.
Critics of antipanhandling laws in the United States argue that they violate a right to free speech protected by the First Amendment of the Constitution. A request for a charitable donation, if done in a nonaggressive manner, is an example of speech that causes no harm and introduces no danger. Thus laws against panhandling unjustly take away basic rights. They are an illegal imposition of the will of a majority upon a disenfranchised minority of the citizenship. And the courts have increasingly begun to take notice. In a series of recent victories, panhandling bans have been overturned in cities such as Worchester, Massachusetts, Portland, Maine, and Grand Junction, Colorado. This has incited cities across the United States to reevaluate and sometimes even suspend their own antipanhandling ordinances, as groups like the American Civil Liberties Union prepare more challenges. As Maria Foscarinis, executive director of the National Law Center on Homelessness and Poverty, puts it, “these decisions are important not only because they protect the speech rights of homeless people, but also because they have struck down a common tool used by local governments to criminalize homelessness.” However, the rate at which these laws have been overturned is dwarfed by the rate at which new laws banning panhandling have ballooned in recent years. Between 2011 and 2014, there was a 20 percent increase in the passage of laws in the United States that ban panhandling in particular places, lifting the total to more than 75 percent of cities surveyed.
Sometimes antipanhandling ordinances are couched as outlawing only “aggressive” panhandling. This may seem at first to be a compassionate and pragmatic solution: regular, nonthreatening panhandling is permitted, but panhandling is outlawed when it is threatening or otherwise deemed invasively persistent. The problem here is that bans on aggressive panhandling lend themselves to unjust overreach. They put legal forms of panhandling under unwarranted scrutiny and pressure. And they give overaggressive law enforcement officers a tool to harass legal panhandlers. This is reflected in the fact that most aggressive panhandling bans are redundant. Cities tend already to regulate forms of aggressive behavior with laws against harassment or disrupting the peace or with broad laws against disorderly conduct, so aggressive panhandling bans may have only the unjust effect of discouraging legal panhandling (something which should otherwise be understood as protected speech).
The political implications of antihomeless design force us to expand our conception of technological “guilt.” The precise manner in which a technology is articulated—both in terms of our linguistic descriptions and in terms of material inscriptions—is connected to our society’s systems of law, representation, economics, and criminal justice. As Donna Haraway puts it, “this is what articulation does; it is always noninnocent, contested practice; the partners are never set once and for all. . . . Articulation is work, and it may fail. All the people who care, cognitively, emotionally, and politically, must articulate their position in a field constrained by a new collective entity.” Through social theory, and in particular here through actor-network theory, we have found ways to think about technology’s social character. But within the issues emerging around antihomeless law, we see that technologies like the antisleep bench or antipick garbage can are implicated not only in social networks but also in larger political structures. That is, rather than being understood as taking part only in particular group agendas, technologies should also be understood as essentially wrapped up within our society’s larger politics, including economic systems, law enforcement procedures, democratic and undemocratic representational schemes, penal methods, and racial and sexual power dynamics, to name just a few of the basics.
Here again it is important to interrogate the intuitions that may linger in the backs of our minds—possibly without our explicit awareness—about how technology changes our world. We must remain careful not to fall into a supposition, on one hand, that technology is somehow always politically innocent and, on the other (and sometimes at the same time, despite contradictions), that technology is inherently forward moving, problem solving, and beneficial. On these political dimensions, the philosopher of technology Andrew Feenberg’s work is instructive. He articulates how technologies have the potential both to challenge prevailing structures of power and also to reinforce them.
Feenberg explains that because technologies are always multistable, “there is no unique correlation between technological advance and the distribution of social power.” He distinguishes between two potential effects of technological advance. One possibility is that the new technologies “conserve” the existing “hierarchy.” He writes, “social hierarchies can generally be preserved and reproduced as new technology is introduced.” Another, more “democratic” possibility is that technological advance challenges the prevailing political structures and social norms that have kept some in power over others. On this alternative possibility, he writes, “new technology can also be used to undermine the existing social hierarchy or to force it to meet needs it has ignored.” This possibility is reflected in “the technical initiatives that often accompany the structural reforms pursued by union, environmental, and other social movements.”
This conception of technology helps to articulate the political danger of the instrumental, utopian, and dystopian attitudes. In its own way, each of these attitudes can discourage positive political action that could challenge traditional hierarchies. Because they assume that technologies control our destiny, determinist attitudes like utopianism and dystopianism can disincline toward working for political change. For example, if you are a committed dystopian, and you think that technological advance necessarily leads us toward some grim future, then you might see political action to be pointless. The best we can do is inveigh impotently against the unstoppable march of technology, with political progress possible only through the abandonment of technological development altogether. If you are a utopian, then you might be even more disinclined toward political intervention. That is, if you assume that technological advance is inherently good, then you may see no reason to establish political checks on its development. Even more, you may assume that our current problems—environmental degradation, world hunger, you name it—do not require political solutions at all; technology will fix everything soon enough.
From Feenberg’s perspective, this is dangerously naive. Sure, technologies have brought undeniably positive and life-changing advances to medicine, transportation, and so on. But it is a political (and empirical) mistake to assume that these advances will always be accrued equally and democratically, or even fairly. And, owing to the multiple stable paths forward possible for any technology, it is a mistake to assume that technological advance itself will correct for inequity. That is, it is a mistake to assume that technological advance will always solve—rather than contribute to—our problems, especially the problems of the disadvantaged and the less wealthy. It certainly has not always done so in the past. If things remain on their current political course, Feenberg argues, then technological advance will simply continue to reinforce hierarchies.
These dynamics are most straightforward in the case of the instrumentalist attitude. If you think technologies are always socially and politically neutral, if you think they are inherently innocent, then you might mistakenly believe that they cannot possibly contribute to the agendas that keep some advantaged and others disadvantaged. Instrumentalists often agree that, sure, people oppress one another all the time in loathsome ways. But, in this view, technologies themselves are never implicated. If technologies are nonpolitical by definition, then they cannot take part in oppressive politics, nor can they ever have the potential to challenge oppression. That is, an instrumentalist may fail to see the possibility for positive democratic change through technological development and may remain blind to the ways that technologies actively maintain societal hierarchies.
To be certain, it may be possible to develop utopian, dystopian, and instrumental accounts of technological advance that are sophisticated enough to somehow also appreciate technological multistability. This pamphlet isn’t a veiled attack on some particular philosophy out there. The point is that we all should keep an eye on those attitudes regarding technological development that are pervasive across society and that may linger to differing degrees in the recesses of our individual minds. Even if we are not explicitly committed to any of these positions, these utopian, dystopian, and instrumentalist attitudes can influence us at unexpected times and incline us against acting for positive political change.
I suggest that antihomeless design is a case-in-point example of technological development that works to conserve societal hierarchies. Through their strategic combination with the system of antihomeless laws, antihomeless technologies serve the interests of the already powerful and work to further subjugate the already disadvantaged. More specifically, antihomeless designs like the antisleep bench or the antipick garbage can and antihomeless laws like those against loitering or panhandling serve a city’s prevailing social and business interests, while simultaneously running counter to the interests of the unhoused population. To put it all together, antihomeless design and law reinforce hierarchies by catering to the business class at the expense of the just treatment of unhoused people as fellow citizens and the moral treatment of unhoused people as human beings.
The roles of antihomeless technologies in conserving hierarchies become clearer in their connection to antihomeless laws and the politics of visibility. Taken alone, a single antisleep bench, if its restrictionary intentions are noticed at all, may appear only to discourage someone from sleeping in one particular spot. To recognize the bench’s larger political significance, it must be analyzed in terms of the system of related antihomeless laws and the pattern of antihomeless design installations across public space. Antihomeless design can become policy.
One place to look for evidence of this is in the design guidelines and best practice recommendations of our cities’ public transit authorities. For example, Winnipeg Transit’s design guidelines for sustainable transportation states,
If the bus stop is located in an area where there is a possibility of people using the seating for sleeping or loitering, the seat should be divided by an arm rest, planter or other form of divider so that the space is not long enough for someone to lay down on.
The Riverside Transit Agency, which serves parts of southern California, writes in its bus stop guidelines that “benches should have anti-vagrant bars or another deterrent as part of the design.” Or as the Greater Vancouver Transportation Authority’s guidelines summarize the whole issue, “benches without middle armrests are preferred, unless sleeping on benches is an issue.” That single bench, then, should be understood not only to make it difficult to sleep in one specific area but to contribute to a larger effort set forth systematically in policy, and incorporated into design, to coerce the unhoused out of public space.
Gender is an example of a political dimension across which we can see varying statistics on homelessness. The majority of unhoused people are male, making up 60 percent of the adult “homeless” population in the United States, and 70 percent of those who remain unsheltered. A specific cause of homelessness faced by women in particular is domestic violence. Cities in the United States routinely list domestic violence among their major causes of homelessness. The annual census report conducted by the National Network to End Domestic Violence finds that of all the unmet requests made to domestic violence service programs, more than half (and in most years, more than 60 percent) are for housing. According to a study by the Williams Institute, a massively disproportionate number of youths living unhoused in the United States are lesbian, gay, bisexual, or transgender (LGBT). Around 40 percent of those served by homeless youth organizations identify as LGBT, despite making up only 7 percent of the youth population generally.
Another example of a salient political structure that cuts across the issue of homelessness is race. Which racial groups make up the largest proportions of the homeless population will of course vary widely country to country, state by state in the United States, and region by region within those places. Still, the data on the racial makeup of homelessness are revealing. In the United States, African Americans represent an outsized portion of the overall homeless population, making up 40 percent of the national homeless total, compared to representing 13.3 percent of the country’s total population. The same can be said for Native Americans, who comprise 1.3 percent of the country’s total population but 2.7 percent of its homeless.
The Coalition for the Homeless reports similarly eye-popping numbers in its study of the shelter system in New York City, whose occupancy has seen all-time records in recent years. Whereas 1 in every 72 residents of the city made use of the shelter system at least once over the course of 2014, that number drops to 1 in 294 white people and jumps up to 1 in 28 African Americans. The racial dynamics are different in the state of Hawaii, where the problem of homelessness has gotten so out of hand that, at the time of this writing, the governor has declared a state of emergency over the issue. Where indigenous people comprise 10.2 percent of the total state population, they make up an astounding 39 percent of the state’s total number counted as “homeless” and fully half of all those living unsheltered.
Any number of large-scale political factors could contribute to the racial disparities seen in unhoused populations in different cities, states, and regions, including well-documented phenomena such as housing discrimination and job application discrimination, segregation, and the inequities of schooling, health care, inherited wealth, and opportunity. When unhoused people spend time, camp, and panhandle in popular downtown and business districts, this can represent a breakdown of long-standing class and racial segregation. It seems possible that part of the appeal of antihomeless laws and designs that push the unhoused out of such districts is that they cater to the prejudices of shoppers, tourists, and office workers unaccustomed to that breakdown in segregation. Whatever the different causes of these disparities in different areas, part of the point of spotlighting the racial dynamics of homelessness here is to emphasize one deeply political aspect of the problem. The problem of homelessness thus does not reduce to mere social conflicts between this and that group but also includes the history of racism in the United States. When cities pass laws and build public-space technologies that discriminate against the unhoused, they play a part in this continuing history.
One of the things that is revealed when thinking about the political dimensions of public-space technologies is that “the public” is itself a contested concept. Who counts as a member of the public for whom public spaces are designed? Should the unhoused also count, even if they are not a constituency for which politicians normally take a stand? Because they are especially in need and especially vulnerable, should the unhoused be considered greater stakeholders in public-space designs? What the public “should” mean and what we “ought” to do about it are open moral and political questions. Insofar as we are increasingly installing antihomeless designs and instituting antihomeless laws, we are already answering these questions in practice and shutting the unhoused out of consideration.
In 2009, a challenge was issued to local ordinances in the city of Boise, Idaho, that outlaw sleeping in public spaces. The plaintiffs in the case were themselves living unhoused when convicted of violating these laws. They argued that laws against camping and sleeping in public make it a crime to be homeless. The number of unhoused people in cities like Boise at times exceeds the space available in shelters. Thus these kinds of laws punish those left with no other option. The plaintiffs claimed that their rights are infringed upon whenever the Boise Police Department enforces these rules.
In August 2015, the Obama administration’s Department of Justice (DOJ) stepped in to register its own interpretation, thus launching the case into national attention. The DOJ came down in favor of the plaintiffs. In a statement of interest, the DOJ wrote, “In those circumstances enforcement of the ordinances amounts to the criminalization of homelessness, in violation of the Eighth Amendment.” On the basis of this reasoning (and other legal precedent), the DOJ’s claim is that the criminal prosecution of those who sleep outside when faced without an available alternative constitutes a violation of their constitutional protection against cruel and unusual punishment.
But then in a stunning turn, in September 2015, the judge threw out the case. As the Idaho Statesman reports, Judge Ronald E. Bush dismissed the suit under the reasoning that the particular plaintiffs had not demonstrated that an imminent threat has been placed upon themselves personally. This is in part because many of the plaintiffs are no longer living unhoused. And although camping citations in Boise have spiked over the last few years, the judge saw no specific evidence that any have been issued in an instance when shelter space was unavailable.
The Boise Mayor’s Office appeared eager to put the case in the rearview mirror, stating,
We agree with and are very pleased by the court’s decision to dismiss this lawsuit. Our efforts on behalf of those in our community who are experiencing homelessness are concrete. Now, with this case behind us, we will be able to better focus on creating positive gains against this challenging societal problem.
This seems hasty. As Judge Bush himself notes, there is no reason that other, more eligible plaintiffs could not file the same exact suit.
Stepping back, we should recognize the importance of the statement issued by the DOJ: it does more than simply weigh in on the Boise case; it presents cities across the United States with a legal test. And it presents us all with a test of our moral intuitions.
The legal test is straightforward enough. Municipalities across America have been issued fair warning: according to the 2015 statement, the DOJ views any law that prohibits sleeping or camping in public when alternatives are unavailable to violate the U.S. Constitution. Multiple news outlets report that their respective cities are now reexamining their anticamping laws, with some already making changes.
Research provided by the National Law Center on Homelessness and Poverty is helpful for understanding the scope of the implications of the DOJ’s position. In a report on laws targeting the unhoused, the center analyzes a sample of 187 U.S. cities. More than half are found to prohibit camping in at least some public areas. More than one-third maintain citywide camping bans. And more than half prohibit sitting or lying down in certain areas. This reflects a significant national increase in the enactment of such camping and sit/lie laws over the past few years.
We can extend the logic of the DOJ’s statement to consider whether there are other ways that anticamping laws could violate the Eighth Amendment. For example, we should consider whether it is an example of cruel and unusual punishment to criminally prosecute someone for sleeping outside when issues like mental illness or addiction make it difficult for this person to find shelter.
What about when people are turned away by the local shelter for reasons other than capacity? They might be denied entrance because of substance usage or because they have pets. Maybe the reason they opt not to use the shelter is because they do not want to participate in mandatory religious services. Maybe they have reached a maximum stay limit. For many, the timetables (by which you must arrive, eat, etc.) are too demanding, possibly conflicting with working hours. For others, the lack of privacy, and sometimes the lack of safety, is enough to keep them out of the shelter system. Because the availability of shelter space has become the basis of the very constitutionality of anticamping laws, shelter rules take on weighty legal and moral implications.
Judge Bush makes exactly these points in his suggestion that the Boise suit could be raised again. He says,
There may, for instance, be an individual with a mental or physical condition that has interfered with [his] or her ability to seek access to or stay at shelters, with such difficulties likely to continue in the future. Or, perhaps a homeless individual will refuse to stay at the River of Life and can support a claim that the facility requires participation in religious practices for homeless individuals to stay in temporary housing there.
We could additionally consider the cruelty of prosecuting those whose status as unhoused has been imposed by a lack of employment opportunities or affordable housing. In all of these cases, there is at least an argument to be made that it may be cruel and unusual to punish someone for sleeping outside.
We could extend the DOJ’s logic even further and widen the scope of the kinds of laws under evaluation. Do other antihomeless laws, in addition to camping bans, violate a citizen’s constitutional protection against cruel and unusual punishment? Take, for example, laws that enforce hygiene standards. If factors like shelter capacity and the unavailability of public showering amenities make it impossible for an unhoused person to stay clean, then it may be cruel to make it a crime to fail to meet certain sanitary minimums. The same could even be said about the availability of public restrooms. Cities will sometimes eliminate public restroom facilities in part as an attempt to ward off the unhoused. If unhoused people have no other option, then laws against public urination appear to punish them for something unavoidable.
The DOJ’s statement also presents a test of our moral intuitions. It prompts us to consider what “cruelty” means with regard to our treatment of those living unhoused. Beyond questions of the constitutionality of criminalizing homelessness, we can ask when exactly a city’s actions toward unhoused people should be considered morally cruel. With the DOJ’s statement in mind, we can consider whether it is morally cruel to persecute the unhoused when they are faced with few other options.
Under this lens, we can reexamine any of the laws and designs we’ve considered so far. When unhoused people are faced with a lack of alternatives, then it appears morally cruel to criminalize behaviors like using a shopping cart, storing private items in public space, loitering, or panhandling. Bring to mind again the array of antihomeless designs we have been investigating, such as antisleep benches, ledge spikes, fences, and antipick garbage cans. If it is morally cruel to criminalize the act of sleeping in public, then there is correspondingly cruelty in the concerted effort made by cities to design the objects of our world specifically to push the unhoused population out of our shared public space.
Thus, far from applying only to the Boise case, the DOJ’s statement prods us to consider the legal and moral cruelty beneath these aspects of our cities’ approaches to the problem of homelessness. It spotlights in particular the way that the anticamping ordinances of many American cities violate the Constitution. And more generally, it points out cruelties all around us, set in laws that unjustly target unhoused people and built callously into the objects of our public spaces.