An individual who lacks housing, including one whose primary residence during the night is a supervised public or private facility that provides temporary living accommodations; an individual who is a resident in transitional housing; or an individual who has as a primary residence a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings.
The number of homeless persons in the United States is estimated to be between 250,000 and three million. Unemployment, cutbacks in social service programs, a lack of affordable housing, and the deinstitutionalization of mentally ill patients are some of the circumstances that have led to people living in shelters or on the streets. There is no fair stereotype of homeless persons: they include the young and old, individuals and entire families, and all races and ethnicities. According to 2000 statistics published by the National Coalition for the Homeless in 2002, best estimates indicate that approximately 1 percent of the U.S. population (3.5 million persons) experience homelessness each year—more than one third of them children. The rights of these persons have become important societal and legal issues.
Although federal law provides for emergency shelter for homeless families in most states, there is no federal or constitutional right to shelter. In 1987, the Stewart B. McKinney Homeless Assistance Act (42 U.S.C.A. § 11301) was passed to provide public resources and programs to assist the homeless population. Under the act, the federal government is required to provide underutilized public buildings for use by people who are homeless. In National Law Center v. United States Department of Veterans Affairs, 964 F.2d 1210 (D.C. Cir. 1992), a homeless rights group sought to enforce compliance with the mckinney act. The court agreed with the plaintiffs and held that the government must comply with the McKinney Act by allowing homeless people access to underused federal property.
Because the federal courts have refused to recognize a federal constitutional right to shelter, several states have enacted their own laws to recognize such a right. Many of these statutes require that cities provide shelter for people who are homeless, but they do not outline enforcement procedures. Although statutes require state agencies to provide shelter, the agencies often cannot keep up with the demand, citing expense and overcrowding. In Atchison v. District of Columbia, 585 A.2d 150 (D.C. App. 1991), a court imposed daily fines on a shelter for failure to provide services. The level of fines combined with the cost of litigation stimulated the adoption of an emergency act that allowed the agency to provide a shelter program based on the availability of funds.
By the late 1990s, public assistance was a prominent political issue. As the government began cutting welfare programs, people who were homeless found it increasingly difficult to rise above the poverty level. In addition, substantial cuts to welfare programs created the possibility that more people would be forced into homelessness.
Existing public assistance programs often fail to help those who are homeless. Some programs require that recipients have temporary or permanent addresses, effectively eliminating otherwise eligible recipients. In some instances, money that could be spent providing permanent, affordable housing for people who are homeless is used to provide temporary housing in "welfare hotels." A welfare hotel is inexpensive housing that is used for temporary shelter by low-income or homeless persons. In 1995, legislation was introduced to control welfare spending and to reduce welfare dependence. (H.R. 1157, 104th Cong., 1st Sess.). The features of this legislation included discontinuing welfare benefits to certain groups and creating state demonstration projects to reduce the number of homeless families in welfare hotels.
One alarming aspect of the growth of the homeless population is the increasing numbers of families and children who have nowhere to live. Children are more strongly affected by homelessness than are adults because they are less able to overcome a lack of food, shelter, health care, and education. Many children in homeless families lack the transportation, documentation, and even clothing needed to attend public schools.
State residency guidelines typically require children to attend school within the district in which their parent or guardian lives. Homeless children cannot meet these residency requirements. Because education is often critical to overcoming poverty and homelessness, the McKinney Act specifically addresses the issue of education for children who are homeless. The act ensures that these children have every opportunity for a public school education. It requires states to revise their residency requirements in order to give such children a free education.
Another barrier to the education rights of children without a home is the inability to track education and medical records. Students can be refused enrollment if they have no documentation of previous schooling. The McKinney Act requires local education agencies to maintain records that can be readily available when a student moves to a new school district. Under the act, children must also have equal access to special-education programs in the public school system.
The right to vote is expressly stated in the U.S. Constitution. Because most states require that a citizen have a permanent residence in order to vote, the right to vote is often denied to people who are homeless. The right to vote provides a way for a person who is homeless to be heard—by electing public officials who are sympathetic to the concerns of people who are without a home—and thus is an important right to protect.
New Jersey was one of the first states to allow people who are homeless the right to vote. The only requirement is that they meet the age and residency requirement of the state's constitution. They can satisfy the residency requirement by specifying a place they regard as home and providing the name of at least one contact who can verify their residence in that place.
By 1994, 13 states had legislation protecting the voting rights of people who are homeless. In Collier v. Menzel, 176 Cal. App. 3d 24, 221 Cal. Rptr. 110 (1985), three persons who were homeless listed a local park as their address on a voter-registration card. The court held that they had satisfied the residency requirement because they had indicated a fixed habitation in which they intended to remain for an extended period. In addition, even though a city ordinance prohibited camping and sleeping overnight in the park, the court held that denying the voter registration would violate equal protection.
With an increased homeless population comes increased concern on the part of members of the general public when they find members of
that population loitering on the streets. vagrancy ordinances were passed to keep people who are homeless from staying too long in any one location. Many of these statutes have been labeled antihomeless legislation because they particularly target behavior over which some homeless people have no control.
In Papachristou v. Jacksonville, 405 U.S. 156, 92 S. Ct. 839, 31 L. Ed. 2d 110 (1972), eight homeless people challenged their conviction for violating a vagrancy ordinance. The U.S. Supreme Court held that the ordinance was vague and that it criminalized otherwise innocent conduct. In this and similar cases, the Court has stated that these "crimes" do not cause any harm to others that outweighs the violation of the rights of the individuals arrested.
Protections against an illegal search and seizure also apply to people who are homeless and to their belongings, even though their belongings might not be located in a traditional home setting. In State v. Mooney, 218 Conn. 85, 588 A.2d 145 (1991), police officers searched belongings of a homeless man that were found under a bridge embankment. As a result of the search, the man was arrested and charged with robbery and felony murder. The man appealed his conviction, claiming that it had been an illegal search because the police had lacked a warrant to search his home, a cardboard box. The court agreed with the man that he had a reasonable expectation of privacy in the contents of his belongings. It disagreed, however, with his contention that he had an expectation of privacy in the bridge abutment area.
When people without a home are arrested and jailed, their property is often destroyed or stolen while they are incarcerated. Laws that target people who are homeless are thus viewed as unreasonable searches and seizures of property. In Pottinger v. City of Miami, 810 F. Supp. 1551 (S.D. Fla. 1992), a class action suit was brought on behalf of thousands of homeless people. The court agreed that certain city ordinances unfairly targeted those people and that resulting arrests and seizures of property were in violation of their constitutional rights.
Finally, there appeared to be an increasing trend for many urban areas to enact legislation prohibiting the homeless from begging or panhandling among the general public. As of 2003, 46 of the nation's 50 largest cities had passed laws that either prohibited or regulated begging—not without some planned challenges.
Baker, Donald E. 1990–91. "Anti-Homeless Legislation: Unconstitutional Efforts to Punish the Homeless." University of Miami Law Review 45 (November 1990– January 1991).
Hanrahan, Patricia M. 1994. "No Home? No Vote. Homeless Are Often Denied That Most Basic Element of Democracy." Human Rights 21 (winter).
Jarrett, Beth D., and Wes R. Daniels. 1993. "Law and the Homeless: An Annotated Bibliography." Law Library Journal 85 (summer).
Mathews, K. Scott. 1991. "Rights of the Homeless in the 1990s: What Role Will the Courts Play?" University of Missouri–Kansas City Law Review 60 (winter).
National Coalition for the Homeless. 2002. "How Many People Experience Homelessness?" Available online at www.nationalhomeless.org/numbers.html (accessed May 25, 2003).
Siebert, Patricia. 1986. "Homeless People: Establishing Rights to Shelter." Law and Inequality Journal 4.
Tolme, Paula. 2003. "Banning Begging." Newsweek 141.