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95 N.Y.U. L. Rev. 1150 (2020)
The Case against Criminalizing Homelessness: Functional Barriers to Shelters and Homeless Individuals' Lack of Choice

handle is hein.journals/nylr95 and id is 1149 raw text is: THE CASE AGAINST CRIMINALIZING HOMELESSNESS: FUNCTIONAL BARRIERS TO SHELTERS AND HOMELESS INDIVIDUALS' LACK OF CHOICE Joy H. KIM* In 2018, the Ninth Circuit ruled in Martin v. City of Boise that the city's ordinance criminalizing individuals for sleeping or camping outdoors in public space an increasingly popular method for cities to regulate the homeless is unconstitutional under the Eighth Amendment's Cruel and Unusual Punishments Clause. Martin was not the first case in which a court struck down an anti-homeless ordinance under the Eighth Amendment. However, it was the first to deem it unconstitutional for a city to punish a homeless person for sleeping outside when shelters are not practically available, even if they technically have available beds. The court in Martin said the shelters at issue were not practically available because they were religiously coercive. This Note argues, however, that courts reviewing criminaliza- tion measures should consider whether shelters are practically available to homeless individuals for reasons beyond religious coercion. Many functional barriers to shelter deprive homeless individuals of a meaningful choice, and the Eighth Amendment prevents governments from punishing individuals for matters beyond their control. Courts should make individualized inquiries when considering the constitutionality of criminalization measures to assess whether individuals expe- riencing homelessness truly have a meaningful choice in sleeping outside. How- ever, the constitutional infirmities behind criminalization measures, the highly factual inquiries required of courts to determine their constitutionality, and their exacerbation of homelessness underscore the need for cities to stop criminalizing homelessness. INTRODUCTION ................................................. 1151 I. EIGHTH AMENDMENT CHALLENGES TO ANTI-HOMELESS O RDINANCES............................................ .. 1157 A. Myths and Misunderstandings About Choices Available to Individuals Experiencing Homelessness ....................................... 1158 B. Homelessness as a Status Under the Cruel and Unusual Punishments Clause........................ 1161 C. Martin v. City of Boise ............................. 1164 * Copyright © 2020 by Joy H. Kim. J.D., 2020, New York University School of Law. I am deeply grateful to Professor Kenji Yoshino for guiding and encouraging me far beyond what I expected of an advisor. Many thanks to the attorneys at the National Law Center on Homelessness and Poverty for their tireless advocacy and for shaping me as an advocate. Thank you to the editors of the New York University Law Review, especially my primary editor Diana Y. Rosen. Thank you to Eric Wang, Maia Cole, Linnea Pittman, Tim Duncheon, Joy Chen, and Samantha Morris for your feedback and friendship. And thank you to my ever-supportive parents, Young-Joo and Joseph. 1150 Imaged with Permission of N.Y.U. Law Review

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