Daniel Ernst is a 1L at the American University Washington College of Law.

In the decades since Franklin D. Roosevelt called for freedom from want,[1] since Lyndon B. Johnson declared a war on poverty,[2] since Martin Luther King Jr. organized the Poor People’s Campaign,[3] fatigue and indifference have largely transformed efforts to clear away poverty into efforts to clear away the impoverished.[4]  While wealth and income inequality has consistently increased,[5] states have criminalized the activities of those experiencing homelessness who are merely trying to stay alive.[6]  This criminalization is ubiquitous in the United States.[7]  Such laws regulate where people can lay down or sleep in public—including prohibitions against sleeping in a car—and criminalize panhandling, loitering, and vagrancy.[8]  Municipalities are even making it illegal to feed those in need, impacting charitable organizations committed to supporting those experiencing homelessness, and further removing vital safety-nets against food insecurity.[9]

In recent years, hostile architecture—urban design which restricts people from using public space generally, and the homeless in particular—has flourished.[10]  While the use of physical barriers to exclude people is not new,[11] the use of urban design to repulse those experiencing homelessness has emerged with zeal across the country and throughout the world.[12]  In late 2017, the city of Seattle, Washington, installed bike racks under an overpass, “in an area where homeless people were likely to sleep, but where there was very little need for bike racks.”[13]  The racks had been installed only after the city had removed the people who had sheltered under the overpass to weather the cold winter.[14]  After public outcry and a letter from a city councilmember, the bike racks were eventually relocated.[15]

Types of hostile architecture are manifold, but it is most often targeted at preventing people from being able to sleep in public.[16]  Such designs include slanted benches; extra armrests interspersed on benches; boulders and large, rough rocks on pavement; and, most sinisterly, spikes on windowsills, sidewalks, and at the thresholds of buildings.[17]  It is clear from the proliferation of hostile architecture that cities have been laser-focused on combatting the most pressing issue surrounding homelessness: ensuring sleeping in public spaces is impossible so that the unsightly effects of inequality in the United States can be easily ignored.[18]

Some legislators have recently sought to confront the inhumanity of hostile architecture and, taking up the mantle of a laboratory of democracy, have proposed legislation to forbid the use of hostile architecture in their states.[19]  In Massachusetts—the only state with a guaranteed right-to-shelter[20]—Representative Mike Connolly proposed legislation in 2023 to prohibit the construction of publicly accessible structures designed or intended to prevent those experiencing homelessness from sitting or lying on them.[21]  Similar proposals have been made in Connecticut in 2023 by Representative Geoff Luxenberg and in Washington in 2024 by Senators Lovelett and Kuderer.[22]  Although the legislation is pending, if the visceral reaction to the bike racks in Seattle show anything, there is hope that these proposals and others like it can gain popular support and emerge throughout the country.

Happening in the backdrop of these proposals is a case scheduled to be argued at the Supreme Court later this Spring—City of Grants Pass v. Johnson.[23]  In 2019, the Court left in place a ruling[24] from the Ninth Circuit in Martin v. City of Boise that held the Eighth Amendment’s Cruel and Unusual Punishments Clause prohibits localities from enforcing anti-camping ordinances if they lack alternative, available shelter beds.[25]  Elected officials urged the Court to take up Johnson in hopes of limiting, if not overturning, Martin and to empower cities to more easily remove the homeless from public spaces.[26]

If the Court affirms the Ninth Circuit’s ruling in Johnson, which affirmed Martin,[27] then advocates for the homeless will have a strong policy argument against hostile architecture. In particular, they will be better positioned to argue that if it is cruel and unusual to criminalize involuntarily living outside and unsheltered when one has no alternative, then it should be considered cruel and unusual to make public spaces harmful to those with nowhere else to turn.[28]  If the Court overturns the Ninth Circuit’s rulings, then states will have an even greater duty to experiment and enact legislation protecting the homeless.[29]

Pearl S. Buck, the first female Nobel Laureate for Literature and a humanitarian, once wrote, “[T]he test of a civilization is the way it cares for its helpless members.”[30]  Some communities have taken steps to meet this test by proscribing hostile architecture.  By embracing Buck’s call—which stood at the heart of Roosevelt’s, Johnson’s, and King’s visions for a better world—we can ensure our efforts to eradicate poverty do not lose sight of those whom it is our duty to care for; to address poverty we need humanity in our design, not hostility.

 

[1] Franklin D. Roosevelt, President of the U.S., State of the Union Address (Jan. 6, 1941) (“The third is freedom from want—which, translated into world terms, means economic understandings which will secure to every nation a healthy peacetime life for its inhabitants—everything in the world.”).

[2] Lyndon B. Johnson, President of the U.S., State of the Union Address (Jan. 8, 1964) (“This administration today, here and now, declares unconditional war on poverty in America . . . Poverty is a national problem, requiring improved national organization and support. But this attack, to be effective, must also be organized at the State and the local level and must be supported and directed by State and local efforts . . . Our aim is not only to relieve the symptom of poverty, but to cure it and, above all, to prevent it.”).

[3] Ralph David Abernathy, And the Walls Came Tumbling Down: An Autobiography 413 (New York: Harper & Row Publishers, 1989) (quoting Martin Luther King Jr. “I can’t get those children out of my mind . . . We’ve got to do something for them . . . We can’t let that kind of poverty exist in this country.”).

[4] Housing Not Handcuffs: Ending the Criminalization of Homelessness in U.S. Cities, Nat’l L. Ctr. on Homelessness & Poverty, 7–20 (2020), https://homelesslaw.org/wp-content/uploads/2018/10/Housing-Not-Handcuffs.pdf [hereinafter Housing Not Handcuffs] (outlining the increasing frequency in which cities criminally or civilly punish homelessness rather than prioritize the development of affordable housing and shelters).

[5] See generally Cong. Budget Off., The Distribution of Household Income, 2018 (Aug. 2021) (providing a non-partisan analysis to the Congress on the distribution of income over the period of 1979 to 2018); see also Juliana Menasce Horowitz et al., Trends in Income and Wealth Inequality, Pew Rsch. Ctr. (Jan. 9, 2020), https://www.pewresearch.org/social-trends/2020/01/09/trends-in-income-and-wealth-inequality/ (discussing the distribution of household income among income brackets and the increasing proportion of wealth and income concentrating for top-earners and shrinking for the middle- and lower-income classes since post-World War II); see also Anshu Siripurapu, The U.S. Inequality Debate, Council on Foreign Rel., https://www.cfr.org/backgrounder/us-inequality-debate#chapter-title-0-5 (Apr. 20, 2022, 5:14 PM) (analyzing the disparity of income growth over decades for top-earners and lower-earners, its impact on a variety of demographics including race, ethnicity, gender, and education, as well as proposals to address the growing disparity).

[6] Housing Not Handcuffs, supra note 4 at 21–32; see also Hum. Rts. Comm., Concluding Observations on the Fourth Periodic Rep. of the U.S., 8, U.N. Doc. CCPR/C/USA/CO/4 (Apr. 23, 2014) (“While appreciating the steps taken by federal and some state and local authorities to address homelessness, the Committee is concerned about reports of criminalization of people living on the street for everyday activities such as eating, sleeping, sitting in particular areas, etc. The Committee notes that such criminalization raises concerns of discrimination and cruel, inhuman, and degrading treatment.”).

[7] Housing Not Handcuffs 2021: State Law Supplement, Nat’l Homelessness L. Ctr., 7­–13 (Dec. 1, 2021), https://homelesslaw.org/wp-content/uploads/2022/02/2021-HNH-State-Crim-Supplement.pdf (detailing examples of how nearly every state and the District of Columbia has at least one law prohibiting or restricting the conduct of people experiencing homelessness, including status offenses, and their associated penalties).

[8] Id.

[9] See Kelli Kennedy, Feeding the Homeless: Act of Charity or a Crime?, Associated Press, https://apnews.com/general-news-f9f3bfd5a81443ba920648ca7032acdd (Nov. 5, 2014, 9:18 PM) (detailing how a then-ninety-year-old World War II veteran was arrested for serving meals in a public park, after doing so for nearly two decades); see also Nina Gologwoski, Pastor Facing Criminal Charges After Giving Homeless People Shelter In Ohio Church, Huffington Post (Jan. 19, 2024, 5:27 PM), https://www.huffpost.com/entry/dads-place-ohio-pastor-charged-homeless-guests_n_65a97da5e4b041f1ce654030 (reporting that a pastor faced 18 zoning law violations for refusing to turn away guests using his church as a shelter); see also Ashlie D. Stevens, “Criminalizing the Samaritan”: Why Cities Across the US are Making it Illegal to Feed the Homeless, Salon (Aug. 7, 2023, 12:01 PM), https://www.salon.com/2023/08/07/criminalizing-the-samaritan-why-cities-across-the-us-are-making-it-illegal-to-feed-the-homeless (discussing fines levied on volunteers from an international aid organization “Food Not Bombs”).

[10] Understanding Hostile Architecture: The Cause and Effect of Restricting Public Space, The Neighborhood Design Ctr. (Oct. 2, 2023), https://ndc-md.org/news-and-stories/understanding-hostile-architecture-the-cause-and-effect-of-restricting; see also Elizabeth Wallce, What’s Behind the Uptick in Hostile Architecture?, Architectural Dig. (Mar. 21, 2018), https://www.architecturaldigest.com/story/hostile-architecture (describing installations of hostile architecture as well as the removal of architecture for a hostile purpose, as in Charlottesville, Virginia where public benches were removed in 2012 possibly done to deter panhandling and loitering).

[11] See Sarah Schindler, Architectural Exclusion: Discrimination and Segregation Through Physical Design of the Built Environment, 124 Yale L.J. 1934, 1953–72 (2015) (discussing historical examples of physical architectural design being used predominately to exclude people of color from white neighbors and highlighting in particular Robert Moses’s exclusionary efforts on Long Island).

[12] Leah Hamilton, Urbanism 101: Hostile Architecture, The Urbanist (Dec. 11, 2023), https://www.theurbanist.org/2023/12/11/urbanism-101-hostile-architecture (detailing examples of hostile architecture both in the United States and the United Kingdom, such as “Camden benches” which were specifically made to “resist criminal and antisocial behavior”).

[13] Id.

[14] MyNorthwest Staff, Bike Racks in Seattle Used as Camping Deterrents Removed After Outcry, MYNorthwest (Mar. 12, 2018, 6:02 PM), https://mynorthwest.com/924329/bike-racks-removed-outcry (outlining the timeline of the introduction of bike racks introduced in Seattle, Washington to deter encampments and the subsequent public outcry).

[15] Id.

[16] Christopher McFadden, 15 Examples of ‘Anti-Homeless’ Hostile Architecture Common to Cities, Interesting Eng’g (Nov. 22, 2020, 11:22 AM), https://interestingengineering.com/culture/15-examples-of-anti-homeless-hostile-architecture-that-you-probably-never-noticed-before.

[17] Id.

[18] Id.

[19] New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) (“It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”).

[20] Luis Fieldman, 7 Things to Know About Mass. ‘Right-to-Shelter’ as Budget Vote Looms, MassLive (Nov. 14, 2023, 11:28 AM), https://www.masslive.com/politics/2023/11/7-things-to-know-about-mass-right-to-shelter-as-budget-vote-looms.html (“Massachusetts became the only state to guarantee a right to shelter in the United States in 1983 and so far remains the only state to do so. New York City has a similar policy to Massachusetts where all homeless individuals are guaranteed shelter—whereas only families are in Massachusetts. The policy in New York City is confined to city limits. Massachusetts is the only state with a ‘right-to-shelter’ law that encompasses the entire state.”).

[21] See H.B. 3005, 193 Gen. Ct., 2023 Leg. (Mass. 2023) (proposing to prohibit hostile architecture in Massachusetts).

[22] See H.B. 6400, 2023 Gen. Assemb., Jan. Sess. (Conn. 2023) (proposing to prohibit hostile architecture in Connecticut); S.B. 6231, 68th Leg., 2024 Reg. Sess. (Wash. 2024) (proposing to prohibit hostile architecture in Washington).

[23] Johnson v. City of Grants Pass, 72 F.4th 868 (9th Cir. 2023), cert. granted sub nom. City of Grants Pass v. Johnson, 144 S. Ct. 679 (2024).

[24] Martin v. City of Boise, 920 F.3d 584 (9th Cir. 2019), cert. denied, 140 S. Ct. 674 (2019).

[25] Martin v. City of Boise, 902 F.3d 1031, 1046–50 (9th Cir. 2018), aff’d in part, rev’d in part en banc, 920 F.3d 584 (9th Cir. 2019); see also Erika D. Smith, Supreme Court Decision on Homeless Case is a Blow to Cities Wanting More Policing Powers, L.A. Times (Dec. 16, 2019, 8:03 PM), https://www.latimes.com/california/story/2019-12-16/homeless-boise-ruling-case-supreme-court (“The federal appeals court said it is unconstitutional to punish people for sleeping on the sidewalk when there aren’t enough shelter beds or housing available as an alternative . . . Last year’s ruling in the Boise case essentially turned . . . into a sweeping and open ended curb on police powers.”).

[26] See Brief for Petitioner at 2–6, 30–35, City of Grants Pass v. Johnson, 144 S. Ct. 679 (2024) (No. 23-175); see also Associated Press, The Supreme Court Will Decide Whether Local Anti-Homeless Laws are ‘Cruel and Unusual’, Pub. Broad. Serv. (Jan. 12, 2024, 3:52 PM), https://www.pbs.org/newshour/politics/the-supreme-court-will-decide-whether-local-anti-homeless-laws-are-cruel-and-unusual

(“Elected officials urged the justices to take up the case because they say the rulings complicate their efforts to clear tent encampments . . . ‘These decisions are legally wrong and have tied the hands of local governments as they work to address the urgent homelessness crisis.’”).

[27] See Johnson, 72 F.4th at 885–96.

[28] Steve Berg, Supreme Court and Homelessness: What the Grants Pass v. Johnson Case Could Do, Nat’l All. to End Homelessness (Jan. 26, 2024), https://endhomelessness.org/blog/supreme-court-and-homelessness-what-the-grants-pass-v-johnson-case-could-do.

[29] Id.

[30] Pearl S. Buck, My Several Worlds: A Personal Record 529 (Open Road Media 2013) (1954).