The Criminalization of Homelessness
Assignments and Questions

Spring 2026
Professor Schnably  

Class 1: January 14, 2026 + Assigned Readings, Objectives, and Questions [Click to expand] Assigned Readings: Readings, pp. 1-60 The questions below are intended to give guidance as to what to think about as you do the readings. Objectives: Become familiar with some basic information and questions about the phenomenon of homelessness and policy responses to it. Become familiar with the some types of criminalization and legal challenges to it. _____________________________________________________ Questions: Who are “the homeless”? How many homeless people are there in the United States? How are the numbers arrived at? Do you see any potential problems with PIT counts as indicating the extent of homelessness? Who do you think is “homeless” or unhoused? What about someone who: Lives on the street? Stays in a homeless shelter? Stays with friends? Is living in an apartment from which she will be evicted in 10 days? Is living in their car or a van? Was evicted and lived on the streets for two weeks before moving in with relatives? What are the causes of homelessness? What is the difference between predictors of homelessness (or risk factors) and causes of homelessness? Is homelessness spread evenly throughout the United States? Is “homelessness” in the United States today the same phenomenon as before World War II? In the post-War era up to the late 1980s? How does what Rossi called in 1990 “the New Homelessness” differ from homelessness in the past? How does it compare to homelessness today? What policy responses (other than criminalization) are deployed to address homelessness? Do you think the policies are inadequate, or simply underfunded? Both? What is Housing First? How is it different from shelters? What are the arguments for Housing First as the best policy response to homelessness? What criticisms do Lonsdale & Glock make of Housing First? What policies does President Trump’s Executive Order advocate for addressing homelessness? How does it differ from the National Alliance to End Homelessness and the National Homelessness Law Center advocate? What vision of the nature and causes of homelessness does it embody? What constitutes “criminalization of homelessness”? Consider these examples: A city arrests unhoused individuals for sleeping in parks after hours (i.e., at night when they are closed to the public). The ordinance making it illegal to be in the parks after hours does not single out homeless individuals. A city arrests unhoused individuals for drinking in public. The ordinance making it illegal to be in the parks after hours does not single out homeless individuals. A city arrests unhoused individuals for drinking in public. The ordinance making it illegal to be in the parks after hours does not single out homeless individuals. Very few unhoused individuals are ever arrested for this offense. City police warn unhoused individuals that who urinate in public that they are violating the law, and order them to leave the area and not come back. What are some examples of criminalization of homelessness? Why would local governments adopt such approaches? Do Florida HB 1365 criminalize homelessness? What exactly does it do? What vision of the causes or nature of homelessness might it represent?

Class 2: January 21, 2026 + Assigned Readings, Objectives, and Questions [Click to expand] Assigned Readings: See below for the specific pages. Objectives: Understand the roots of the Eighth Amendment challenge to the criminalization of homelessness in Robinson v. California and Powell v. Texas, including complexities relating to (a) notions of what is voluntary versus involuntary, (b) the differences between criminal law and involuntary civil commitment for treatment, and (c) the distinction between status and conduct. Understand the Eighth Amendment holdings in Pottinger and Martin, to see how they evolved from Robinson and Powell. Get a sense of other constitutional and statutory challenges to criminalization of homelessness. We will go over them subsequently in more depth; right now focus on getting a general idea of what the non-8th Amendment challenges are based on. Understand the legal rationales given by lower courts that rejected the Eighth Amendment as a ban on criminalization, focusing on Tobe, Joel, and the dissents in Martin _____________________________________________________ Questions: Read all of Robinson, but you should focus especially on the opinions by Justices Stewart (Readings, pp. 61-69), Clark (Readings, pp. 80-86), and White (Readings, pp. 86-89), and may read the rest quickly: Make sure you understand in specific terms why, according to the Court, Robinson’s conviction violated the Eighth Amendment. Do you agree with the Court’s holding? Why or why not? What are its implications for criminal law generally? For the Eighth Amendment? Consider Justice Clark’s defense of the use of criminal law as treatment for drug addiction. In that respect, you might find it interesting to look at this testimony by Edward Suarez, a witness for the City in the Pottinger hearing in Fall 2018. He works with the IDEA Needle Exchange program run by the University of Miami, and earlier worked at Camillus and took part in its Lazarus program. The excerpt here shows his view that homeless individuals with mental illness might benefit from being jailed because that is the only place where mental health treatment is available for those who can’t afford it. What do you make of the jail as therapy idea in Justice Clark’s dissent in Robinson (see Readings, pp. 80-86) and Justice Black’s concurrence in Powell (Readings, pp. 114-124)? Note the comment by Justice Marshall in Powell that involuntary civil commitment facilities may be no better than jails, and “[t]hus we run the grave risk that nothing will be accomplished beyond the hanging of a new sign -- reading ‘hospital’--over one wing of the jailhouse.” (Readings, p. 106). (Justice Black says the same thing in Powell, see Readings, p. 116). Marshall goes on to say that involuntary civil commitment for treatment of an illness may be worse because it is indefinite, compared to a jail term. What is the significance of the venue/location issue that Justice White discusses in his dissent? (Readings, pp. 86-90) Is Justice White right in criticizing the majority for recognizing “no degrees of addiction”? Why or why not? Consider Justice White’s assertion (Readings, pp. 89): If it is “cruel and unusual punishment” to convict appellant for addiction, it is difficult to undertand why it would be any less offensive to the Fourteenth Amendment to convict him for use on the same evidence of use which provided he was an addict. In other words, he suggests that the decision casts into doubt the state’s power to punish the use of drugs by someone who is addicted to them. Do you agree with this reading of the Court’s holding? Read all of Powell, but you should focus especially on the following opinions (and may read the rest quickly): Justice Marshall’s opinion for the plurality (Readings, pp. 33-54); Parts II & IV of Justice Black’s concurrence (Readings, pp. 57-58, 60-62); Justice White’s concurrence in the result (Readings, pp. 65-71); and Justice Fortas’s dissent (Readings, pp. 71-87). Why do you think the Supreme Court was undertaking review of a county trial court judgment, rendered without a jury and with one expert only (the defendant’s) whom the prosecution barely cross-examined, and which consisted of brief (and broad) proposed findings of fact submitted by the defendant and adopted verbatim by county court, which nevertheless convicted him? What does Justice Marshall mean in reading Robinson to turn not on the absence of mens rea but on the presence of some actus reus? (Readings, p. 50) What is the “limitation by fiat” he worries about in the dissent’s opinion? (Readings, p. 51) How is federalism relevant, according to Marshall? (Readings, p. 52) You may recall United States v. Lopez, 514 U.S. 549 (1995), from Constitutional Law I, in which the Court held that possession of a gun is not an economic “activity” under the Commerce Clause. Under the Eighth Amendment, is possession of drugs status or conduct? Is “conduct” the same as “activity”? What is a “condition” as opposed to a “status”? Pottinger v. City of Miami. In reading Pottinger, focus on: Part II (Findings of Fact) (Readings, p. 154-157) Parts III.B & C (Readings, p. 158-162) Part IV (Readings, p. 180-182). Martin v. City of Boise. Read Judge Berzon’s opinion for the panel majority (Introduction and Part I, Readings, p. 211-216, and Part II.C., Readings, p. 223-226) Disagreements with Pottinger and Martin: Tobe: Focus on Part I of the opinion, Readings, pp. 183-184, and Part III.B (Readings, pp. 189-190). The California Supreme Court rejected the Eighth Amendment approach taken in Pottinger. On what basis did it conclude that punishment of someone who is homeless for camping in public is not a violation of the Eighth Amendment? Martin dissents: Judge Smith’s dissent, Parts I.A., I.B, I.C. & II.B Readings, pp. 198-204, 206-207) Judge Bennett’s dissent, Parts I & II Readings, pp. 207-211) Why are the dissents set out in Martin before the court’s opinion? Status: Pottinger set out a two-part test in discussing the Eighth Amendment. On each of these, consider how the court reaches its conclusion, and on what evidence does it rely in doing so: A determination that homelessness is involuntary, not voluntary. A determination that there are not enough shelter spaces for homeless people. Consider these counter-arguments. Are they persuasive? Consistent with Robinson and Powell? A sharp distinction between voluntariness and involuntariness is unrealistic; homelessness is at least partly the result of choices individuals make. The presence or absence of shelter is irrelevant to status, because (a) there is no legal right to housing, and (b) it makes no sense to determine status based on discretionary acts of others. Even if homelessness is a status (involuntary), it is more immediately remediable (by the provision of shelter or housing) than drug addiction, the subject of Robinson. Offenses: What kinds of offenses are protected under the Eighth Amendment (as construed by Pottinger and Martin if committed by homeless persons? Why is obstructing the sidewalk covered, but not trespassing on private property, or petty theft (say, of food)? Assume that all the shelters in the City of Miami are full. Is the arrest of a homeless person by a City of Miami police officer permissible under the following circumstances? (Assume all the listed acts below are prohibited by a municipal ordinance or state statute.) Suppose the individual is: sleeping in a park, in a tent, after the park is closed. sitting in a grocery store, refusing to leave at the manager’s request. sleeping on a sidewalk. sitting on a bench in a public square. sleeping on a bench in a public square. building a fire in a park. sitting in the lobby of City Hall for hours. urinating in a public alley with no one else present. using a public water fountain to wash clothes. sitting on a park bench with an open can of beer. committing an armed robbery and assault. littering. asking pedestrians passing by for money. Consider that under Martin and Pottinger, a person experiencing homelessness could be arrested for (say) camping in public if they are offered available shelter and turn it down. How would Martin and Pottinger apply if the shelter offered was not within same jurisdiction that was threatening arrest? Suppose a person living on the streets were told by a City of Miami police officer that he was obstructing the sidewalk, in violation of a City of Miami ordinance. Suppose, further, that the officer told the individual that he would not be arrested if he accepted a shelter bed in Homestead, 30 miles south of Miami, and the individual refused that offer. Would it have been consisent with the Eighth Amendment holdings of Pottinger and Martin for the officer to arrest the individual for obstructing the sidewalk?

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