July 2019 - Parks & Recreation - 32

LAW REVIEW

federal appeals court found homeless individuals " may be forced to
choose between sleeping outside
on nights when Sanctuary is full
(and risking arrest under the ordinances) or enrolling in BRM programming that is antithetical to
his or her religious beliefs. "

Eighth Amendment
Violation?
Under the circumstances, the issue
before the federal appeals court
was, therefore, whether " the Cruel
and Unusual Punishments Clause
of the Eighth Amendment " in the
U.S. Constitution precluded " the
enforcement of a statute prohibiting sleeping outside against homeless individuals with no access to
alternative shelter. "
As cited by the court, the Eighth
Amendment states: " Excessive bail
shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted " (U.S.
Const., amend. VIII). Further, the
court noted the Cruel and Unusual
Punishment Clause " circumscribes
the criminal process in three ways " :
First, it limits the type of punishment the government may im30

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pose; second, it proscribes punishment " grossly disproportionate " to
the severity of the crime; and third,
it places substantive limits on what
the government may criminalize.
In this particular instance, the court
found the third limitation was pertinent; i.e., substantive limits on what
the government may criminalize:
The entire thrust of the Cruel
and Unusual Punishment is that
criminal penalties may be inflicted
only if the accused has committed
some act, has engaged in some
behavior, which society has an
interest in preventing, or perhaps
in historical common law terms,
has committed some actus reus
[guilty act]. It thus does not deal
with the question of whether certain conduct cannot constitutionally be punished because it is, in
some sense, involuntary...[C]riminal penalties may not be inflicted
upon a person for being in a condition he is powerless to change.
Accordingly, the federal appeals
court acknowledged, " the Eighth
Amendment prohibits the state
from punishing an involuntary act
or condition if it is the unavoidable consequence of one's status

or being. " In particular, the appeals
court found: " This principle compels the conclusion that the Eighth
Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on
public property for homeless individuals who cannot obtain shelter. "
Whether sitting, lying, and sleeping are defined as acts or conditions,
they are universal and unavoidable
consequences of being human.
Moreover, any conduct at issue here
is involuntary and inseparable from
status - they are one and the same,
given that human beings are biologically compelled to rest, whether by
sitting, lying, or sleeping. As a result, just as the state may not criminalize the state of being " homeless
in public places, " the state may
not criminalize conduct that is an
unavoidable consequence of being
homeless - namely sitting, lying,
or sleeping on the streets.
While the City could not criminalize the state of being homeless
in public places, the federal appeals
court cautioned: " Our holding is a
narrow one. " Specifically, the federal appeals court would " in no way
dictate to the City that it must provide sufficient shelter for the homeless, or allow anyone who wishes
to sit, lie, or sleep on the streets at
any time and at any place. "
We hold only that so long as
there is a greater number of homeless individuals in a jurisdiction
than the number of available beds
in shelters, the jurisdiction cannot
prosecute homeless individuals for
involuntarily sitting, lying, and
sleeping in public.
That is, as long as there is no
option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping
outdoors, on public property, on
July 2019 - Parks & Recreation

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