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56 Harv. C.R.-C.L. L. Rev. 367 (2021)
Civilly Criminalizing Homelessness

handle is hein.journals/hcrcl56 and id is 375 raw text is: Civilly Criminalizing Homelessness Sara K. Rankin' The criminalization of homelessness refers to the enactment and enforce- ment of laws and policies that punish unsheltered people for surviving in public space, even when those individuals have no reasonable alternative.2 The consti- tutional and civil rights issues stemming from criminally charging unsheltered people for public survival are clear, albeit not uncontested. But cities often skirt legal challenges to criminalization by pursuing means other than criminal charges to punish homelessness. Many cities civilly criminalize homelessness through civil enforcement, which extends from infractions or fines to invisible persecution, such as the persistent policing and surveilling of unsheltered peo- ple. While courts, legislatures, and advocates largely focus on criminal charges, those punishments are just the tip of the criminalization iceberg: civil enforce- ment is arguably more extensive and damaging. However, courts and legisla- tures largely do not protect people experiencing homelessness from civil criminalization. This Article argues for greater attention to the devastating im- pact of civil punishments, drawing from other critiques that expose how civil tools punish poor and vulnerable people. It also examines how punishment oper- ates outside of both criminal charges and civil sanctions, severely penalizing unsheltered people and requiring reform. TABLE OF CONTENTS INTRODUCTION ............................... ................... 368 I. THE INTERSECTIONALITY OF CRIMINALIZATION ............. 371 II. THE INVISIBILITY OF CIVIL CRIMINALIZATION AS PUNISHMENT ............................................... 375 III. OTHER LEGAL LIMITS TO DEFENDING AGAINST CRIMINALIZATION ...................................... .. 380 A. Eighth Amendment: Cruel, Unusual, and Excessive P unishm ent ......................................... 381 Associate Professor, Seattle University School of Law; Founder and Director of the Homeless Rights Advocacy Project (HRAP) in the Fred T. Korematsu Center for Law and Equality at the Seattle University School of Law. Deep thanks to Professor Brooke Coleman and to my careful research assistants, Monica Keo, Ashley Karlstad, Madisyn Uekawa, and Daniel Scherzer. 2 This article endeavors to use person-centered terminology to phrase homelessness as an experience or an adjective, as opposed to an aspect inseparable from one's identity. Using phrases such as people experiencing homelessness instead of homeless people seeks to humanize our neighbors and emphasize the systemic and societal causes of homelessness. See, e.g., Jennifer L. Rich, People Experience Homelessness, They Aren't Defined by It, U.S. INTER- AGENCY COUNCIL ON HOMEIESSNESS (June 28, 2017), https://www.usich.gov/news/people-ex- perience-homelessness-they-arent-defined-by-it, archived at https://perma.cc/RXN6-2H4D. Some individuals with lived experience of homelessness question such phrasing. See Please Stop Saying 'People Experiencing Homelessness,' INVISIBLE PEOPLE (Feb. 15, 2019), https:// invisiblepeople.tv/saying-people-experiencing-homelessness-will-not-influence-change/, archived at https://perma.cc/98PF-F3ZQ. This article prioritizes human-centered language ex- cept in limited instances where such use would impede flow or readability.

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