San Francisco, Hostage to the Homeless
Failure to enforce basic standards of public behavior has made one of America’s great cities increasingly unlivable.
Everyone’s on drugs here . . . and stealing,” an ex-felon named Shaku explains as he rips open a blue Popsicle wrapper with his teeth. Shaku is standing in an encampment of tents, trash, and bicycles, across from San Francisco’s Glide Memorial Church. Another encampment-dweller lights a green crack pipe and passes it around. A few paces down the street, a gaunt man swipes a credit card through a series of parking meters to see if it has been reported stolen yet.
For the last three decades, San Francisco has conducted a real-life experiment in what happens when a society stops enforcing bourgeois norms of behavior. The city has done so in the name of compassion toward the homeless. The results have been the opposite: street squalor and misery have increased, even as government expenditures have ballooned. Yet the principles that have guided the city’s homelessness policy remain inviolate: homelessness is a housing problem; it is involuntary; and its persistence is the result of inadequate public spending. These propositions are readily disproved by talking to people living on the streets.
Shaku’s assessment of drug use among the homeless is widely shared. Asked if she does drugs, a formerly homeless woman, just placed in a city-subsidized single-room-occupancy (SRO) hotel, responds incredulously: “Is that a trick question?” A 33-year-old woman from Alabama, who now lives in a tent in an industrial area outside downtown, says: “Everyone out here has done something—drugs, you name it.” On Sutter Avenue, a wizened 50-year-old named Jeff slumps over his coffee cup at 7:30 AM, one hand holding a sweet roll, the other playing with his beard. A half-eaten muffin sits next to him on a filthy blanket. “I use drugs, alcohol, all of it,” he tells me, his eyes closed, as a pair of smiling German tourists deposit a peach on his blanket. Last night it was speed, he says, which has left him just a “little bit high” this morning. “The whole Tenderloin is for drugs,” Jeff observes, before nodding off again.
An inadequate supply of affordable housing is not the first thing that comes to mind when conversing with San Francisco’s street denizens. Their behavioral problems—above all, addiction and mental illness—are too obvious. Forty-two percent of respondents in the city’s 2019 street poll of the homeless reported chronic drug or alcohol use; the actual percentage is likely higher. The city relentlessly sends the message that drug use is not only acceptable but fully expected. Users dig for veins in plain view on the sidewalk; health authorities distribute more than 4.5 million syringes a year, along with Vitamin C to dissolve heroin and crack, alcohol swabs, and instructions on how to best tie one’s arm for a “hit.” Needle disposal boxes have been erected outside the city’s public toilets, signaling to children that drug use is a normal part of adult life. Only 60 percent of the city’s free needles get returned; many of the rest litter the sidewalks and streets or are flushed down toilets.
Drug sellers are as shameless as drug users. Hondurans have dominated the drug trade in the Tenderloin and around Civic Center Plaza and Union Square since the 1990s. They congregate up to a dozen a corner, openly counting and recounting large wads of cash, completing transactions with no attempt at concealment. Most of the dealers are illegal aliens. One might think that city leaders would be only too happy to hand them off to federal immigration authorities, but the political imperative to safeguard illegal aliens against deportation takes precedence over public order. Local law enforcement greets any announced federal crackdown on criminal aliens with alarm.
Curious to test the Hondurans’ threshold of suspicion, I made repeated inquiries along Hyde Street about the going rate for a dose of fentanyl, the city’s up-and-coming drug of choice. To get a quote, I would have to show the money, I was told. I offered $8, not wanting to overpay, and was directed down the block. At the corner of Hyde and Golden Gate, steps away from the UC Hastings law school, I struck a deal at $16. The seller took the cash halfway up the block and exchanged it with a skinny, bare-chested man covered with tattoos, who handed him a small Ziploc bag containing a crumbly white pellet. “Hey, baby, remember me!” my seller crooned as he handed me the packet.
Further down Hyde, a 36-year-old man in a plaid shirt, with sandy hair and blue eyes, sat on the sidewalk slouched against a car as he searched unsuccessfully for a vein in his right wrist. Switching to his left hand, he managed to draw blood into the syringe, marking a vein. I asked him to verify that I was indeed sold fentanyl. Was I a cop? he asked, accepting my response at face value. He would have to taste my purchase to confirm its authenticity, he said, honorably breaking off just a few grains rather than popping the whole pill in his mouth. (His forbearance was wise: at two grams, the pellet could have been lethal if ingested all at once, depending on its purity.) “Can I ask you how much you paid?” the addict asked groggily. “Motherfucker!” he burst out when told. “You’d ordinarily get much less than that for 20 fucking dollars. It’s because you’re new.” The junkie, originally from Seattle, begged for my stash so he could sell it to his own customers or take it himself. “If I was sober, I wouldn’t want you to give it to me,” he said, “but my problem now is that I only have five fucking dollars and I want to go to Big 5 [a sporting-goods store] because someone stole my backpack.”
The brazenness of the narcotics scene has worsened since the passage of Proposition 47, another milestone in the ongoing effort to decriminalize attacks on civilized order. The 2014 state ballot initiative downgraded a host of drug and property crimes from felonies to misdemeanors. (See “The Decriminalization Delusion,” Autumn 2015.) Local prosecutors and judges, already disinclined to penalize the drug trade so as to avoid contributing to “mass incarceration,” are even less willing to initiate a case or see it through when it is presented as a misdemeanor rather than a felony. San Francisco officers complain that drug dealers are getting neither jail time nor probation. Drug courts have closed in some California cities, reports the Washington Post, because police have lost the threat of prison time to induce addicted sellers like the Seattle man into treatment. The number of clients in San Francisco drug court dropped from 296 in 2014 to 185 in 2018, a decline of over 37 percent.
Mental illness is the other obvious condition afflicting the homeless that makes the question of affordable housing secondary. Thirty-nine percent of the homeless polled in the 2019 street survey said that they suffered from psychiatric conditions; the actual percentage is probably higher. Outside the Red Coach Motor Hotel on Eddy Street, a small, dusty man in a white T-shirt is waving his arms in the middle of the street, his pants hanging down, smartphone in hand. He yells at passersby: “I’m too fucking polite, fuck you, you take my kindness for weakness. I don’t know why you’re laughing at me. I don’t feel that way about women, but I’m the bitch!” After lunging toward me, he wheels around and continues up Polk Street, screaming and gesticulating. Two male tourists from Greece, who landed in San Francisco just hours before, observe: “We don’t have so many problems in Greece.”
Mental illness is not always so overt. A man in a Stanford University sweatshirt is lying on a grimy apricot-colored blanket on Van Ness Avenue, eyes closed, mechanically putting pieces of muffin into his mouth. Realizing that he is being observed, he sits up, centers his sunglasses on his head, and reaches for a pack of Pall Malls. Timothy, 47, says he served time in a Texas hospital for the criminally insane, following a domestic violence incident. He has been banned for life from banking with Wells Fargo after getting into a “disagreement” with a teller; Bank of America is also off limits, after he got into a “disagreement” with a manager who insulted him in Hebrew, he says. He is barred from a local shelter for getting into yet another “disagreement,” this one with someone who stole his diver’s watch. He is on probation for attacking a health worker in the San Francisco Veterans Administration hospital. He was recently in jail for brandishing a loaded BB gun in a Red Lobster restaurant. At present, however, he is affable and well-spoken. Asked why he doesn’t move to a cheaper housing market, where his $1,100 monthly VA benefits and eligibility for a large VA home loan would go far, he responds: “Because I love this place! San Francisco is an international, tolerant, peace-loving community that is often imitated but never duplicated.” He appreciates the leeway given him for his lifestyle. “If I lay down like this in Fremont?” he asks rhetorically, referring to a city across the East Bay. It is questionable whether Timothy’s presence on the streets is conducive to public safety.
When the mentally ill abuse drugs, their risk of violence increases. But assault seems to have been normalized in San Francisco, at least when committed by the homeless. Wallace Lee is part of a neighborhood coalition trying to stop the placement of a shelter on the Embarcadero, the city’s tourist-friendly waterfront. “Anyone who has lived in San Francisco for five years has either been attacked by a homeless person or has a friend who has been attacked,” he says. Members of his protest group have stopped mentioning such assaults in public hearings, however, since doing so brings on accusations that they are “criminalizing homelessness.”
In October 2015, three gutter punks—youth who roam up and down the West Coast colonizing the sidewalks and panhandling—robbed and shot to death a 23-year-old Canadian woman in Golden Gate Park and killed a 67-year-old man a few days later after stealing his car. They were high on meth. The incident appears to have produced no perturbations in San Francisco’s thinking or policy. In August 2019, a 25-year-old homeless addict viciously attacked a woman entering her Embarcadero apartment, after demanding that she let him inside so that he could kill the “robot”—a female concierge—at the reception desk. The presiding judge initially refused repeated requests to hold the suspect in pretrial detention. The San Francisco supervisors may be unwilling to back policies that would help prevent such violence, but they have found time to ban city agencies from stigmatizing the perpetrators of such violence by using words like “felon” or “offender.” Under language guidelines passed in August 2019, criminals and ex-cons will henceforth be known as “justice-involved” persons or “returning residents.”
The elderly poor, in particular, suffer from the city’s surrender to street lawlessness. Crescent Manor is a beautifully restored Beaux-Arts SRO for seniors and the mentally disabled; murals of bathing beauties, flying ducks, and fish grace its lobby. The residence lies across from the headquarters of the Coalition on Homelessness, San Francisco’s most fearsome advocacy group. Say this for the Coalition: it lives by its principles. Outside its red door is a rancid encampment of umbrellas, lawn chairs, tarps, and backpacks. An obese woman sits on an overturned bucket, her bare buttocks hanging over the side; other women lean against the building’s wall, nodding off; a man walks by with his pants falling off. Someone spits on the sidewalk. The Crescent Manor day clerk gestures toward the throng. “See these dudes out here shooting up without a care in world? Our elderly are scared to go out. They don’t know what kind of drugs these people are on. They don’t like people leaning up against our building. Our seniors pay rent. It doesn’t matter how much they pay—they pay rent.” But elderly tenants apparently have less clout than street vagrants in San Francisco. (In August 2019, the Coalition announced that it had lost its lease and would be moving a few blocks down Turk Street, where it will undoubtedly attract another encampment.)
The city enables the entire homeless lifestyle, not just drug use. Free food is everywhere. Outreach workers roam the city, handing out beef jerky, crackers, and other snacks. At the encampment across from Glide Memorial Church, a wiry man in a blue denim jacket announces that day’s lunch selection at the church’s feeding line, to general approbation: fried chicken. He triumphantly brandishes a half-eaten leg before tossing it into the street. Susan, a 57-year-old Canadian who lives in an encampment on Willow Alley, itemizes the available bounty while rolling a cigarette: free dinners and movies; the microwave ovens at Whole Foods; free water at Starbucks. The homeless position themselves outside coffee shops in the morning for handouts of pastries and java. If those handouts don’t materialize, there’s always theft. A barista at the Bush and Van Ness Starbucks says that someone steals food and coffee at least every other day. “We are not allowed to do anything about it,” she says. “The policy is we can’t chase them.”
The city’s biannual homeless survey claims that “food insecurity” is a pressing problem, but the homeless don’t act like food-deprived people. Uneaten comestibles litter the sidewalks and gutters. A typical deposit of detritus outside an office building on Turk and Market includes an unopened one-pound bag of California walnuts, a box of uneaten pastries, an empty brandy bottle, a huge black lace bra, a dirty yellow teddy bear, one high-heeled red suede boot, and a brown suede jacket. A dapper man named Ralph has appointed himself the unofficial cleaner of the block where Glide Memorial Church sits. He has never seen anyone throw something in the trash, rather than toss it on the ground. “They’re not interested in doing anything for themselves,” he says.
The homeless are also wired. Most vagrants have smartphones, which they use to barter goods. They use free Wi-Fi or steal passcodes. In the entrance to San Francisco’s central library on Civic Center Plaza, a bent man with a bike repeatedly tries to plug his phone into an outlet while muttering incoherently. A sign announces that the outlet is not working. Two patrol guards politely try to direct him inside the library, but he wanders off, still muttering. “I offered to have him use an outlet inside; his time could have been better spent finding one that works,” one of the guards sighs.
The combination of maximal tolerance for antisocial behavior, on the one hand, and free services and food, on the other, acts as a magnet. “San Francisco is the place to go if you live on the streets,” observes Jeff, the 50-year-old wino and drug addict. “There are more resources—showers, yeah, and housing.” A 31-year-old named Rose arrived in San Francisco from Martinez, northeast of the city, four years ago, trailing a long criminal record. She came for the benefits, including Vivitrol to dull the effect of opiates, she says woozily, standing outside a huge green tent and pink bike at Golden Gate and Hyde, surrounded by the Hondurans.
Suggesting that some of the homeless are making a choice is heresy in official circles. Longtime San Francisco pol Bevan Dufty, formerly director of the Mayor’s Office of Housing Opportunities, Partnerships and Engagement, now president of the BART board of directors, says that it is “B.S.” to call people service-resistant. “The lies that people tell are disgusting—‘people don’t want services,’ ‘they come here to be homeless.’ These lies are to make you blame the victim.”
Actually, it’s the homeless themselves who suggest that their condition has a large voluntary component. Jeff has been offered housing by numerous outreach workers and could come off the streets if he wanted to, he says. A man standing outside the city’s latest shelter prototype, known as a Navigation Center, says that he was offered housing four times but always turned it down. “I don’t know if I didn’t want to give up drugs, but I could’ve went in way before now.” Vanessa, a heavily mascaraed trans woman, came from Denver a year ago at the invitation of a friend because “everyone comes here,” she says. Though she has been attacked and her tents burned, she still lives at the Willow Alley encampment rather than accepting housing. Her fellow camper Susan explains: “Teams come to talk to us, but they can only do so much.” Susan has been taken to a Navigation Center, but it felt like a jail, she says: “I’m claustrophobic.” In fact, the Navigation Centers are designed to be maximally accommodating. Residents can come and go as they please, order meals at any time of the day, and bring their pets, partners, and possessions (known in shelter parlance as the Three Ps).
A bike patrol officer in Union Square confirms the challenge of persuading people to get off the streets. Belying the advocates’ characterization of the police as oppressors, he approaches an encampment on Powell Street as a supplicant. “Good morning, ma’am. It’s 8:45 AM. Rise and shine! Y’all need any resources from me?” Doris, a short 51-year-old with greasy gray hair, a leather jacket, and white sneakers, asks in blurred syllables for a few more minutes to sleep, which the officer grants. “You try to help, but the majority of time, people refuse,” he says. As Doris stuffs dirty comforters, cell-phone chargers, and cookies into a stolen trash bin, she observes: “I’m going to be honest: some of us are so addicted, we are so into our addictions, that we end up being comfortable being homeless.” Doris estimates that she spends $40 a day on crack, vodka, and other substances. She adds penitently: “But we need to start respecting our neighbors and stop littering.”
The advocates’ fallback position to their “service resistance is a lie” conceit is that services have to be “relevant to where people are,” which means that services should come with no rules or restrictions. It is not for the people destroying the social compact, however, to decide whether they will deign to accept the help that taxpayers are offering, when refusing that help destroys everyone else’s quality of life. Up and down the West Coast, Third World diseases associated with lack of sanitation—including typhoid, typhus, and hepatitis A—are breaking out in and around encampments. In 2018, San Francisco officials received more than 80 calls a day reporting human feces on sidewalks and thoroughfares. The city’s encampments generate up to six tons of trash daily, including needles still loaded with heroin and blood. The stench of the streets lingers in the nostrils for hours.
Elevating the alleged rights of the homeless over those of the working public has cost billions in government outlays, with nothing to show for it. Mayors have come and gone; agencies have been renamed, task forces convened, ten-year plans rolled out, and section chiefs, liaison officers, and operations-support teams added to existing bureaucracies and seeded into new ones, while the “unsheltered” count continues to rise—up 17 percent from 2017 to 2019 alone, to 8,011. San Francisco continues to puzzle over the reason. Is it lack of city-created affordable housing, as the advocates and politicians maintain? No other American city has built as much affordable housing per capita, according to the Bay Area Council Economic Institute. From 2004 to 2014, the city spent $2 billion on nearly 3,000 new units of permanent supportive housing, which comes with drug counseling and social workers. More have been constructed since then, and thousands more are in the works, along with more shelter beds.
Is San Francisco not spending enough generally, as the advocates and politicians maintain? Its main homelessness agency—currently dubbed the Department of Homelessness and Supportive Housing and dedicated to an allegedly novel mission: “helping homeless residents permanently exit the streets”—commands a $285 million budget. Add health services and sanitation, and you get a $380 million annual tab for homelessness, according to the city’s budget analyst. That figure is wildly under the mark, leaving out criminal-justice costs, welfare payments, and repairing infrastructure deterioration, among other expenditures. But even assuming the conservative $380 million, that works out to $47,500 a year per homeless person.
So what have been the missing elements in this flood of spending? A commitment to a single standard of behavior for all and an insistence that rights carry with them reciprocal responsibilities. San Francisco’s response to crimes against the public order has been fleeting, at best. The most sustained period of enforcement came under Mayor Frank Jordan, a former city police chief, in the early 1990s. (See “San Francisco Gets Tough with the Homeless,” Autumn 1994.) An initiative called Matrix paired police officers with social workers to try to coax the homeless into shelter and housing; the police enforced 18 quality-of-life laws against such behaviors as aggressive panhandling, loitering, and public drug sales. Matrix initially targeted a large encampment in Civic Center Plaza, but the public response was so positive that the program spread citywide. Shelter- and service-resistance were already evident, however; only a small fraction of the homeless accepted shelter or remained housed.
San Francisco’s progressive self-image soon trumped common sense, and in 1996, at the urging of the Coalition on Homelessness, voters turned Jordan out of city hall in favor of former state assembly speaker Willie Brown. Brown had run on a compassion platform, but he soon came to repudiate it, observing with amazement that many of the homeless didn’t actually want to come off the streets. Since then, most enforcement initiatives have proved abortive. In 2010, voters passed an ordinance allowing police officers to cite people on their own recognizance for blocking sidewalks and streets. It has rarely been used. (See “The Sidewalks of San Francisco,” Autumn 2010.)
In 2016, voters defied the Coalition on Homelessness again and approved Proposition Q, which allowed sanitation workers to clear encampments after a 24-hour notice and an offer of shelter. It, too, went largely unused until supervisor Mark Farrell, installed as an interim mayor in January 2018, vowed to start applying it. “You can offer services, you can offer shelter and housing to people and at a certain point, as a city we need to draw the line and say ‘this is a service-resistant population, we need to take down those tent encampments because they are unhealthy for the entire city of San Francisco,’ ” he said in 2018. Farrell was succeeded as mayor by London Breed in July 2018, however, and the Prop. Q power returned to limbo status.
Yet evidence has been abundant that law enforcement restores civic order. Before the 2016 Super Bowl, then-mayor Ed Lee announced that the homeless were simply “going to have to leave. . . . We’ll give you an alternative. We are always going to be supportive. But you are going to have to leave the streets.” And for the relevant period, the streets downtown were markedly cleaner. In spring 2018, a viral video of flagrant drug use in the Powell Street subway station prompted the authorities to increase police patrols there. The monthly tally of needles picked up by BART cleaners in the station dropped from 1,519 in July 2018 to 166 in May 2019, according to the San Francisco Chronicle, and the drug scene there has abated. (Part of the drop in the needle count may be due to the increasing popularity of fentanyl, which can be smoked.) In April 2019, BART began posting more officers inside transit stations to deter the rampant farebeating that was costing taxpayers $25 million to $35 million annually and enabling a large homeless population in the subway system. Ticket sales rose 10 percent, police calls fell 50 percent, and 30 percent more riders put value on their existing cards, belying the claim that beleaguered turnstile jumpers are simply too poor to pay. Areas of new development in San Francisco, like Mission Bay, home to several new hospitals, have not had a vagrancy problem because vagrancy has not been tolerated there.
San Francisco is not going to solve its street squalor unless it commits to a foundational principle: street living is not allowed, period. Set up camp, conduct your bodily functions in public, litter, loiter, use and sell drugs—all these illegal behaviors will result in a law-enforcement response, if only just moving someone along. Establishing that principle focuses the mind, bringing urgency to the task of creating places where people can get the help they need. The chimerical goal of building more affordable housing in the city for the “unsheltered” population would have to be discarded; its primary usefulness was to guarantee that the homeless remain on the streets, serving as a fund-raising bonanza for the activists and as a tool of the political Left. A unit of affordable housing in San Francisco costs between $600,000 and $800,000, depending on the materials used; building housing for all 8,000 homeless individuals would cost up to $6.4 billion, a third of the city’s budget. Permanent supportive housing for the entire homeless population would cost another $200 million annually. Yet according to a 2018 study by the National Academy of Sciences, such service-rich housing decreases the time that recipients spend homeless by only one to two months a year.
No one has an entitlement to live in the most expensive real-estate market in the country, certainly not on the public dime. It is not even clear why any given city is morally obligated to provide housing to someone who starts living on its streets, even if that city’s culture of permissiveness led to the vagrant’s decision to camp there. But assuming such an obligation, the money that San Francisco spends trying to house the homeless locally could go much further outside its boundaries; the millions saved could go to mental health and addiction services. Clean-and-sober campuses, serving an entire region, could be built on abandoned or undeveloped land in industrial zones and rural areas. California’s cities and counties should pool resources for these facilities, since the vagrancy problem is fluid. The bare-bones campuses must be immaculately maintained, safe, and disciplined, so that residents learn habits of self-control. Everyone should work.
Even if it were possible to slash local housing costs—one developer has proposed factory-constructed, modular micro-units at a still-pricey $240,000 a unit—keeping people who should be striving for sobriety in easy proximity to drugs is no recipe for rehabilitation. Shaku, the ex-con camping across from Glide Memorial Church, notes that “San Francisco offers a lot of resources. If you’re serious, you can get help. But when you get out of prison, you’re right in the middle of the drug markets.”
Residential neighborhoods should not have to accept the risk of shelters. People who have worked their way up the housing ladder have a right to expect stable neighbors. In San Francisco, however, openly opposing such facilities unleashes a torrent of abuse from the advocates and their political allies. At a hearing in April 2019, a member of the residents’ group opposing a new Navigation Center on the Embarcadero said that he decided to speak at the hearing only after being called “a racist, a bigot, [and] class elitist” for not wanting to give up his backyard to the drug trade and untreated mental illness. The advocates’ insistence on larding homeless housing through every part of a city, no matter the real-estate costs, is their revenge on the bourgeois values that they despise.
The homelessness industry loudly protests any abandonment of the local housing ideal. “San Francisco must invest fully in housing that keeps impoverished families in our city,” Jennifer Friedenbach, executive director of the Coalition on Homelessness, said in 2018, objecting to a program that subsidizes apartments for single mothers outside the city. Impoverished families are the “city’s lifeblood,” according to Friedenbach. That is a disputable proposition. The advocates’ fallback position is that moving people outside the place where they currently claim homelessness severs the ties that can get them back on their feet. There is no evidence supporting this proposition. (San Francisco also provides bus tickets to about 800 individuals a year to rejoin family or friends elsewhere, an initiative that should be expanded as much as possible.)
Providing the mentally ill with the “liberty” to decompose on the streets is cruelty, not compassion. Several California state legislators have introduced legislation to make involuntary treatment and commitment easier. Yet the draft law is estimated to cover a mere eight individuals in San Francisco, by requiring, over the previous year, eight previous emergency visits to a hospital, as well as the patient’s refusal of voluntary outpatient services. Another proposed bill that dispenses with the voluntary-outpatient service requirement would cover only 35 individuals. The standard for getting the mentally ill into treatment must be rationally related to the need. More facilities for reinstitutionalization should be constructed; they, too, should be built where land is cheapest and taxpayer resources can provide the most care for the dollar.
The legal framework for responding to crime and vagrancy must also change. Proposition 47 should be amended or repealed to restore to police the ability to make arrests for most property crimes and for what used to be drug felonies. Reinstitutionalizing the severely mentally ill would free up jail space for ordinary criminals; at present, many of the untreated mentally ill end up in county jails after committing crimes, where they fail to receive needed long-term assistance. The city’s prosecutors and judges also must start taking low-level offenses seriously. Since 2016, judges in the San Francisco Superior Court have stopped issuing warrants when someone cited for a public-disorder misdemeanor skips a court date. Such enforcement, according to court personnel, criminalizes poverty. But the rule of law does not have an income threshold; its application should be universal. The enforcement or nonenforcement of norms sends important signals to individuals about what society expects of them.
The litigation onslaught from the homeless-industrial complex in every city with a significant street-anarchy problem is endless. But a 2018 ruling from the Ninth Circuit—comprising the Western states—was particularly crippling to order maintenance. The Ninth Circuit panel ruled that jurisdictions could not enforce anti-camping ordinances at night if they did not provide enough shelter beds for their entire street population. The panel drew on a pair of Supreme Court cases from the 1960s that held that government could not criminalize a status—such as the status of being a drug addict—without running afoul of the Constitution’s Eighth Amendment ban on cruel and unusual punishment. Criminal statutes must instead target voluntary acts, such as using or selling narcotics, the Supreme Court ruled in those 1960s cases. The 2018 Ninth Circuit decision, Boise v. Martin, extended this reasoning to protect public encampments. (An earlier Ninth Circuit case, Jones v. Los Angeles, had reached the same result, but that decision lost its precedential value when the parties settled.) Being homeless was a status or involuntary condition over which a person has no control, the Boise v. Martin panel held. If the state cannot criminalize homelessness (because homelessness is an involuntary condition), the state also cannot criminalize the inevitable consequences of that condition. Sleeping in public is one of those inevitable (and uncriminalizable) consequences, since sleep is a biological necessity. Only if a municipality has available shelter capacity for everyone on the street may that municipality cite someone for occupying a public sidewalk or thoroughfare in the evening. The Boise ruling triggered an increase in encampments across the Ninth Circuit, as officers backed off of enforcement.
Boise v. Martin was a patent case of judicial activism in the pursuit of a favored policy agenda. The decision discounted facts that stood in the way of its desired conclusion. But the ruling’s most serious problem was the declaration that homelessness is an involuntary condition that the sufferer has no capacity to control or change. Numerous personal decisions go into being homeless, such as not moving to a cheaper housing market, refusing offered services, or breaking ties with friends or family members who might be able to provide accommodation. The concept of agency is already under assault in the legal academy; should more courts pick up on this trend, much of the criminal law would have to be discarded. A dissenting Ninth Circuit judge in a subsequent appeal of the case noted that if cities cannot ban sleeping in public, because sleeping is an inevitable concomitant of being human, they also cannot ban defecating in public. The majority chose not to respond to this logical inference.
In July 2019, Theodore Olson, a Washington lawyer best known for his work on the 2000 electoral case of Bush v. Gore, announced that his firm, Gibson, Dunn & Crutcher LLP, was seeking Supreme Court review of Boise v. Martin. If the Court grants review, Olson should challenge not just the specific holding banning encampment ordinances but the constitutional jurisprudence underlying the decision as well. The Eighth Amendment speaks only of punishment; it is a mistake to use it as a restriction on the substantive criminal law. Moreover, the conduct versus status distinction that grew out of that mistake is, in many instances, philosophically incoherent.
If San Francisco wanted to give its homeless addicts their best shot at stability, it would go after the open-air drug trade with every possible tool, including immigration law, however unlikely such a change of course is. The San Francisco Police Department should send information regarding drug-trafficking suspects to Immigration and Customs Enforcement agents, so that ICE can arrest illegal-alien dealers for deportation. Proving illegal status is easier than busting a drug-trafficking operation. Though California law bans state law-enforcement officials from honoring ICE requests to deliver illegal-alien convicts to ICE custody, the Los Angeles and Orange County Sheriff Departments have created workarounds that San Francisco should use. If advocates insist that the main driver of homelessness is insufficient housing, they should stop trying to increase the state’s huge illegal-alien population—currently somewhere between 2.2 million and 2.6 million—which competes for housing and drives up costs. At a Board of Supervisor hearing in June 2019, single mothers organized by the Coalition on Homelessness demanded in Spanish that they be given federal Section 8 housing vouchers, rather than the shelter apartments they were currently occupying. Some of those single mothers were undoubtedly in the country illegally. Taxpayer subsidies should go to citizens, not individuals who are defying the rule of law.
The stories that the homeless tell about their lives reveal that something far more complex than a housing shortage is at work. The tales veer from one confused and improbable situation to the next, against a backdrop of drug use, petty crime, and chaotic child-rearing. Behind this chaos lies the dissolution of those traditional social structures that once gave individuals across the economic spectrum the ability to withstand setbacks and lead sober, self-disciplined lives: marriage, parents who know how to parent, and conventional life scripts that create purpose and meaning. There are few policy levers to change this crisis of meaning in American culture. What is certain is that the ongoing crusade to normalize drug use, along with the absence of any public encouragement of temperance, will further handicap this unmoored population.
The viability of cities should not be held hostage to solving social breakdown. Carving out a zone of immunity from the law and bourgeois norms for a perceived victim class destroys the quality of urban existence. As important, that immunity consigns its alleged beneficiaries to lives of self-abasement and marginality. Tolerating street vagrancy is a choice that cities make; for the public good, in San Francisco and elsewhere, that choice should be unmade.
Top Photo: “Everyone out here has done something—drugs, you name it,” says one of the city’s homeless. (DAVID LEVENE /EYEVINE/REDUX)
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