Litigation over New York City's homeless policy took another bizarre twist recently when Manhattan Supreme Court justice Helen Freedman ordered the city to pay fines of $50 or $100 per night (for a total of up to $5 million) to homeless families whom it failed to place in emergency shelters. To find families entitled to collect the fines, the state judge ordered the city to take out advertisements, costing nearly a quartermillion dollars, in New York Newsday and other papers. The Newsday ad contained a form for claimants to fill out with their address and the dates and times at which they were denied shelter.

After losing an appeal to the state's highest court and being threatened with fines and jail, city officials consented to the court order, which absurdly envisions homeless people scanning the legal notices in Newsday, then checking their records to find out precisely when they went unsheltered two or three years earlier. The order further seems oblivious to the possibility that more people will declare themselves homeless if they might be able to collect $50 for doing so.

But the real absurdity lies in a judicial approach that has converted a social policy to help the homeless into a rigid legal right to be housed. The right to housing is based on a lower court's questionable interpretation of the State Constitution, the city's "consent" during the Koch administration (which Mayor Koch now says was a mistake), and a directive signed by an appointed state official who later said he never meant to order the city to furnish immediate housing for families. Yet because this mistaken and regretted rule now is embalmed in a state court order, the city's elected officials have no flexibility in dealing with homelessness.

Left to their own devices, city officials might not come up with an ideal homeless policy. But New York City's resources are limited, and it has no way of preventing people from coming to the city to take advantage of generous benefits. Mayor Giuliani, like Mayor Dinkins before him, points out that the city already does more than any other for the homeless. Moreover, the right to immediate housing undercuts the incentive of the homeless to uphold their end of the social contract.

The court's decrees do not resolve any of the hard choices city officials face in making social policy. Doubtless, Justice Freedman sees her order as compelling elected officials to address a serious problem, but once a court mandates a particular social policy, options inevitably shrink, public officials are trapped, and democracy suffers.


City Journal is a publication of the Manhattan Institute for Policy Research (MI), a leading free-market think tank. Are you interested in supporting the magazine? As a 501(c)(3) nonprofit, donations in support of MI and City Journal are fully tax-deductible as provided by law (EIN #13-2912529).

Further Reading

Up Next