Armed with lawyers, data, and money, the federal government is discouraging local communities from passing laws that treat the daily realities of being homeless as crimes.
The effort draws on three different forms of federal power. Government attorneys are urging a federal court to strike down one local law criminalizing outdoor sleeping, which would create precedent that could be used elsewhere. The official federal homelessness task force is using its platform to discourage communities from cracking down on tent encampments, an act without the same bite as a court filing but one which is likely to be influential in the advocacy world.
Money talks louder than legal briefs and expert advice, though, and significant movement on how federal dollars get awarded for homelessness outreach work appears to be on the horizon. Any community that makes homelessness illegal may soon find it harder to obtain Department of Housing and Urban Development (HUD) funding for building shelters and staffing outreach positions.
“I think folks can assume that we’re going to be using that tool to help communities combat this kind of behavior at the local level,” HUD Deputy Assistant Secretary for Special Needs Ann Oliva said in an interview.
The federal government is the key source of funding for most anti-homelessness work at the local level, and such action from HUD could have a much more direct impact than the other recent maneuvers. HUD is on record opposing criminalization policies, and advocates are hopeful that the agency will soon put that opposition into action.
HUD doles out a little under $2 billion each year to local “Continuums of Care,” the official jargon for the often-vast coalitions of local charitable and governmental groups that specifically work on homelessness. The Continuums compete with each other for funding using a lengthy questionnaire that HUD puts out regularly. The questions and associated point values give HUD the ability to encourage and discourage particular ideas about homelessness work. Revisions to the funding formula are always contentious, but this winter may see HUD push against efforts to criminalize homelessness in ways that correspond with the recent DOJ and ICH actions.
Oliva wouldn’t confirm that HUD is planning to add a question about criminalization, but advocates “have been told that there will be one,” National Law Center on Homelessness and Poverty attorney Eric Tars said. “We do expect to see other related incentives being put into other federal funding streams in the next year or so,” he said.
The hope is that tying federal purse-strings to the anti-criminalization values that most ground-level social service providers adhere to can help blunt the pressure politicians often face to appear tough on the homeless. For years, governments around the country have passed wave after wave of laws deeming the everyday activities of homeless people — sitting on sidewalks, sleeping outdoors or in cars, and even receiving meals in public from charitable groups — to be crimes. Laws banning public camping, public begging, and general loitering are on the rise nationwide, according to NLCHP data. There are 50 percent more such ordinances in Washington state than there were in 2000, according to another study. Another study of just 58 California towns found more than 500 “anti-vagrancy” laws in that sample of the state.
In the past year or so, studies have started to emerge showing the huge societal costs of this approach. One estimate in Florida found that it costs three times as much money to handle homeless people through emergency rooms and jails than it would to provide them with free permanent housing and support services. An exhaustive six-year study in California’s Silicon Valley revealed that Santa Clara County spends more than half a billion dollars each year enforcing a variety of laws that target the homeless and leaving them to the care of hospitals. Switching to the Housing First model that has emerged in the homeless services community in recent years could have saved the county’s taxpayers hundreds of millions of dollars — to say nothing of the fact that it actually combats homelessness rather than shuffling the unsheltered through the justice system and spitting them back onto the street.
Potential HUD action would complement two narrower recent moves elsewhere within the Executive Branch to discourage treating homelessness as a crime. The Department of Justice (DOJ) told a federal court in early August that laws criminalizing outdoor sleeping are unconstitutional. It isn’t a decisive move in the case, but it makes the defeat of Boise, Idaho’s sleeping ordinance more likely, said Tars.
“For the past 20 years, the Department has been silent on this issue,” Tars said. But by saying publicly that such laws violate the Constitution, he said, the DOJ is giving a huge boost to both the Boise case and opponents of anti-homeless laws everywhere — including HUD itself. “We were really happy to see the DOJ come out with the guidance they came out with,” Oliva said, “one because we think it’ll be helpful for communities as a tool to fight these kinds of ordinances, but also because it helps us as we go forward.”
The United States Interagency Council on Homelessness (USICH) took a similar stance in August, publishing an advisory on best practices for dealing with homeless tent encampments that specifically discourages cities from clearing such camps by force.
HUD concurs with the underlying beliefs about criminalization that drive both the DOJ and USICH actions, but official movement from the agency could still be months away. While Oliva is not permitted to discuss specifics of how HUD might tweak its funding formula to discourage criminalization in the future, she offered two examples of how local knowledge and best practices filter through the agency, in both directions.
When Congress was cobbling together the 2009 stimulus package, HUD won a one-time $1.5 billion appropriation to fund a category of programs called Rapid Re-housing. For years, HUD had been hearing success stories about the practice, in which people who become homeless get connected with heavily subsidized housing for a fixed period of time to allow them to regain their economic footing. But the Recovery Act money was the agency’s first opportunity to provide resources to promote the practice, Oliva said.
“We actually like innovation! We want communities to always be looking for the next thing, the better thing, because if we stagnate we’re not going to get to our goals,” she said.
Local ordinances criminalizing homelessness are an example of how innovation sometimes produces failure. And just as HUD can serve as a pollinator spreading good ideas, the agency can also use its authority to discourage bad ideas — and isn’t shy about doing so.
“For as long as I’ve been here, we have had questions in our annual application process around the issue of discharge planning,” Oliva said. “How are our grantees interfacing with the jails and prisons and the criminal justice system in their area to make sure folks aren’t leaving jails or prisons directly into homelessness, if we can avoid it?” Places that are more diligent about preventing people from falling through the cracks as they come out of incarceration get rewarded with points on the funding questionnaire. Continuums of Care that choose not to do those things risk losing out on funds for the projects they want in their communities.
This longstanding attention to how communities work with the formerly incarcerated could be a model for future efforts to discourage criminalization policies. With so many groups in such a heated race for a relatively small pile of federal money, even a single question about local ordinances could make a large impact. Competition for HUD funding is so fierce that “half a point or a point can make a difference between being funded or not funded,” Oliva said.