Pervasive Penality: How the Criminalization of Poverty Perpetuates Homelessness

A growing literature examines the extent to which the criminal justice system perpetuates poverty and inequality. This research examines how anti-homeless laws produce various forms of police interactions that fall short of arrest, yet have wide-ranging impacts on the urban poor. Our analysis draws on a citywide survey of currently and recently homeless people, along with 43 in-depth interviews, to examine and reveal the mechanisms through which consistent punitive interactions, including move-along orders, citations, and destruction of property, systematically limit homeless people’s access to services, housing, and jobs, while damaging their health, safety, and well-being. Our findings also suggest that antihomeless laws and enforcement fail to reduce urban disorder, but create instead a spatial churn in which homeless people circulate between neighborhoods and police jurisdictions rather than leaving public space. We argue that these laws and their enforcement, which affected the majority of study participants, constitute a larger process of pervasive penality— consistent punitive interactions with state officials that rarely result in arrest, but that do material and psychological harm. This process not only reproduces homelessness, but also deepens racial, gender, and health inequalities among the urban poor. K E Y W O R D S : homelessness; poverty governance; criminal justice; community-based research. In response to the explosive growth of homelessness across the United States in the 1980s, and the judicial overturn of Jim Crow, anti-Okie, “ugly,” and vagrancy laws that traditionally empowered Acknowledgements: This project was made possible by Human Rights Work Group at the San Francisco Coalition on Homelessness, especially by peer researchers Bilal Ali, George Bracey, Alejandra Cruz, T. J. Johnston, Zenah Rinehardt and Executive Director Jennifer Friedenbach. Isaac Martin provided crucial feedback on research design and writing at every stage of this project. Loı̈c Wacquant and Sandra Susan Smith provided important suggestions. Amy Smith and her students at San Francisco State University provided valuable transcription assistance. We also thank Colleen Rivecca, Paul Boden, Tony Sparks, Freja Sonne, Kelley Cutler, Nick Kimura, Shira Noel, Teresa Gowan, Bob Offer-Westort, Doug Ahlers, Marina Fischer, Sarah Rankin, Arefa Vohra, Andy Chu, Gary Lewis, Lt. Michael Nevin, Brenda Meskan, John Murray, Vilaska Nguyen, Leah Rothstein, Karen Shain, Joe Wilson, Dennis Woo, Kelley Winter, and the anonymous reviewers of Social Problems. Our research was supported by the Sociological Initiatives Foundation, UC Berkeley Center for Human Rights, UC San Diego Center for Global Justice, and the Center for Engaged Scholarship. Chris Herring and Dilara Yarbrough are equal first authors of this manuscript. All three authors contributed to the research design and collection of data. Please direct correspondence to Chris Herring at the Department of Sociology, 410 Barrows Hall, University of California, Berkeley, CA 94720; email: christoph.herring@berkeley.edu. Dilara Yarbrough may be contacted at the Criminal Justice Studies Program, Department of Public Affairs and Civic Engagement, 261 HSS Building, San Francisco State University, San Francisco, CA 94132; email: dilara@sfsu.edu. VC The Author(s) 2019. Published by Oxford University Press on behalf of the Society for the Study of Social Problems. All rights reserved. For permissions, please email: journals.permissions@oup.com. 1 Social Problems, 2019, 0, 1–19 doi: 10.1093/socpro/spz004 Original Article ow naded rom http/academ ic.p.com /socpro/advance-articloi/10.1093/socpro/spz004/5422958 by Azona State U niersity user on 05 April 2019 police to manage the down-and-out, U.S. cities created new policies that restricted a wide variety of behaviors associated with homelessness, including panhandling, sleeping in parks, and sitting on sidewalks (Ortiz, Dick, and Rankin 2015). Thirty years later, these laws are spreading at an unprecedented rate in the United States and across the globe (see Evangelista 2013; Huey 2007; Johnsen and Fitzpatrick 2010). Most U.S. cities have municipal codes that punish the life-sustaining behaviors of homeless individuals. The National Law Center on Homelessness and Poverty (NLCHP) found that more than half of the 187 cities in its study banned camping and sitting or lying in public, and over two-thirds carried bans on loitering and begging in particular places (2017). Between 2006 and 2016, bans on sitting and lying increased by 52 percent, city-wide camping bans by 69 percent, prohibitions on loitering and loafing citywide by 88 percent, and bans on living in vehicles rose 143 percent. Recent statewide studies by legal scholars have shown that most cities have multiple ordinances on the books (Adcock et al. 2016; Fisher et al. 2015; Frankel, Katovich, and Vedvig 2016; Olson, Macdonald, and Rankin 2015). For instance, California cities have an average of nine anti-homeless laws, while Los Angeles and San Francisco each have 21 and 24 respectively (Fisher et al. 2015). Each law taken on its own may seem limited in its strictures on targeted behaviors; collectively, they effectively criminalize homelessness. As legal scholar Jeremy Waldron presciently wrote over twenty years ago, “what is emerging – and it is not just a matter of fantasy – is a state of affairs in which a million or more citizens have no place to perform elementary human activities like urinating, washing, sleeping, cooking, eating and standing around” (1991:301). What are the impacts of these laws on homelessness and the reproduction of poverty more generally? Social scientists have devoted considerable attention to the politicization of a social problem (housing and social services) into a law enforcement problem (maintaining order) (Smith 1996; Vitale 2008; Wolch and Dear 1994), but far less attention has been given to the ramifications and impact of this transformation on homeless people. Among the first to empirically assess the effect of anti-homeless laws on people experiencing homelessness, this study evaluates some determinants and consequences of their enforcement. When analyzed in isolation, such move-along orders and citations may seem inconsequential, but when analyzed as part of a larger process of criminalization, what we term pervasive penality, anti-homeless enforcement proves to have detrimental consequences for wide swaths of the homeless population. Furthermore, our findings expose how pervasive penality not only reproduces homelessness, but also widens racial, gender, and health inequalities among homeless and precariously housed people. H O M E L E S S N E S S A N D C R I M I N A L I Z A T I O N Over the last 40 years, the United States has witnessed a jail and prison boom of colossal proportions. Surging over 500 percent from merely 380,000 inmates in 1975, U.S. prisons and jails today contain over 2.13 million people (U.S. Bureau of Justice Statistics 2018). During this same period, homelessness transformed from a rare experience for a small collection of predominantly single men, to a phenomenon that affects a diverse assortment of over three million poor families and individuals in the United States each year (National Law Center on Homelessness and Poverty 2017). As annual funding for public housing plummeted from $27 billion in 1980 to $10 billion at the decade’s end, corrections funding surged from nearly $7 billion to $26.1 billion (Maguire, Pastore, and Flanagan 1997) transforming the U.S. prison system into the primary provider of affordable housing and many of its jails into the largest homeless shelters in town (Wacquant 2009). In the wake of the rise of advanced homelessness and hyper-incarceration, social scientists have established various quantitative correlations between incarceration and homelessness. For instance, 23 percent of homeless people in New York City shelters had spent time in prison or jail in the previous two years (Metraux and Culhane 2006) and 49 percent of homeless people in a national survey disclosed having spent time in a jail and 18 percent having spent time in a state penitentiary compared to five percent of the general population (Burt et al. 1999). Researchers have found that 2 Herring et al. D ow naded rom http/academ ic.p.com /socpro/advance-articloi/10.1093/socpro/spz004/5422958 by Azona State U niersity user on 05 April 2019 homelessness was 7.5 to 11.3 times more prevalent among jail inmates than the general population (Greenberg and Rosenheck 2008). In San Francisco, between 10–24 percent of the jail population identified as homeless at the time of arrest (Applied Survey Research 2013). In sum, there exists an ever-tightening nexus between the criminal justice system and homelessness (see Metraux, Caterina, and Cho 2008). To explain the dynamics behind this penal/homeless nexus, scholars have examined the movement from prison or jail into homelessness and vice versa. On the one hand, scholars have shown how incarceration produces homelessness. This occurs both directly through policies excluding people with a criminal record from private and public housing (Carey 2004; Desmond 2012; Thacher 2008), and indirectly via barriers to accessing work (Pager 2003) and social services (Hays 2003). We also know that homelessness disproportionately exposes people to incarceration through the concentration of homeless services in over-policed inner-city neighborhoods, the temptation to commit crimes of desperation, and what John Irwin (2013) calls “rabble management:” the routine jailing of the disreputable and disaffiliated for minimal offenses in the interests of public order (Gowan 2002, 2010; Snow and Anderson 1993). Yet, while these scholars have traced the criminalization of homelessness as paths between the prison and the street, little is known about the far more frequent contact between homelessness and the criminal