New Book: Kristin O’Brassill-Kulfan, Vagrants and Vagabonds Poverty and Mobility in the Early American Republic (2019). Overview below:
The riveting story of control over the mobility of poor migrants, and how their movements shaped current perceptions of class and status in the United States
Vagrants. Vagabonds. Hoboes. Identified by myriad names, the homeless and geographically mobile have been with us since the earliest periods of recorded history. In the early days of the United States, these poor migrants – consisting of everyone from work-seekers to runaway slaves – populated the roads and streets of major cities and towns. These individuals were a part of a social class whose geographical movements broke settlement laws, penal codes, and welfare policies. This book documents their travels and experiences across the Atlantic world, excavating their life stories from the records of criminal justice systems and relief organizations.
Vagrants and Vagabonds examines the subsistence activities of the mobile poor, from migration to wage labor to petty theft, and how local and state municipal authorities criminalized these activities, prompting extensive punishment. Kristin O’Brassill-Kulfan examines the intertwined legal constructions, experiences, and responses to these so-called “vagrants,” arguing that we can glean important insights about poverty and class in this period by paying careful attention to mobility. This book charts why and how the itinerant poor were subject to imprisonment and forced migration, and considers the relationship between race and the right to movement and residence in the antebellum US. Ultimately, Vagrants and Vagabonds argues that poor migrants, the laws designed to curtail their movements, and the people charged with managing them, were central to shaping everything from the role of the state to contemporary conceptions of community to class and labor status, the spread of disease, and punishment in the early American republic.
New Article: Ron Hochbaum, Bathrooms as a Homeless Rights Issue, SSRN Mar. 2019. Abstract below:
Bathrooms are a bellwether of equality. Segregated bathrooms were at the center of the Civil Rights movement. Accessible bathrooms were at the heart of the Disability Rights movement. Now, gender-neutral bathrooms or bathrooms assigned by gender, rather than sex, are at the heart of the Transgender Rights movement.
This article is the first to examine the right to access bathrooms as it relates to the homeless community. The article explores the current paradox where cities, counties, and states provide few, if any, public bathrooms for the homeless community and the public at large, while criminalizing public urination and defecation.
To better understand this paradox, the article contains two original multi-jurisdictional surveys. The first reviews the prohibitions on public urination and defecation in the 10 municipalities with the most homeless individuals. The second explores the Freedom of Information Act and Public Record Act responses of those municipalities to requests for information regarding the public bathrooms they operate and potential barriers to use for homeless individuals (e.g. closing in the evenings or particular seasons, charging a fee for entry, being located in buildings requiring identification for entry, etc.).
The article contextualizes the paradox in relation to human dignity, public health, and the historical use of bathroom access as an exercise of power. It contends that the current scheme denies homeless individuals a basic sense of dignity, while undermining the health and safety justification for prohibitions on public urination and defecation by failing to operate public restrooms. The article further argues that government actors use bathrooms to marginalize the homeless community in the same way that they have used them to marginalize women, people of color, individuals with disabilities, and transgender individuals. In exploring this use of power, the article argues that prohibitions on public urination and defecation are part of a larger trend of criminalizing homelessness and the evolution of segregation.
Finally, the article evaluates potential solutions to the paradox. The solutions reviewed include increasing the availability and accessibility of public restrooms, leveraging private industry, and reforming or challenging the law. The article concludes that any long-term solution to the problem requires an examination of the paradox through the lens of the homeless community.
New Article: Hannah Kieschnick, Note, A Cruel and Unusual Way to Regulate the Homeless, 70 Stan. L. Rev. 1569 (2018). Abstract below:
In the face of affordable housing crises and increasingly visible homeless populations, many cities have enacted anti-homeless ordinances that regulate public behavior largely performed by homeless individuals. These ordinances prohibit necessary and life-sustaining behavior, such as sleeping and camping in public, for those without housing in cities that lack sufficient shelter space. Although the U.S. Supreme Court in the 1960s established the “status crimes” doctrine—which provides that the Eighth Amendment prohibits subjecting a person to criminal punishment based on her status— the Court has left unaddressed the full reach of that doctrine. Some advocates for homeless people have argued that the status crimes doctrine protects against the criminalization of conduct that homeless individuals have no choice but to perform in public. Lower courts and state courts considering constitutional challenges brought by these advocates have divided on the issue, left to conjure up limiting principles without guidance from the Court.
This Note argues that the status crimes doctrine and the substantive protections of the Eighth Amendment should extend to this kind of conduct. It proposes a test to aid advocates, courts, and local legislators. In addition, it addresses standing and other procedural concerns that have plagued homeless plaintiffs seeking to challenge sleeping and camping bans.
News Coverage of Poverty: Karen Zraick, This Legislation Could Force Stores to Take Your Cash, NYTimes.com, Feb. 20, 2019.
New Article: Valerie Schneider, The Prison to Homelessness Pipeline: Criminal Record Checks, Race, and Disparate Impact, 93 Ind. L. J. 421 (2018). Abstract below:
Study after study has shown that securing housing upon release from prison is critical to reducing the likelihood of recidivism, yet those with criminal records— a population that disproportionately consists of racial minorities—are routinely denied access to housing, even if their offense was minor and was shown to have no bearing on whether the applicant would be likely to be a successful renter. In April of 2016, the Office of General Counsel for the United States Department of Housing and Urban Development (HUD) issued much anticipated guidance dealing directly with the racially disparate impact of barring those with criminal records from public and private housing.
After decades of seeming to encourage local public housing providers to adopt harsh policies barring applicants with criminal records regardless of the nature or recency of the crime, the Obama-era guidance from HUD represents a sea change in federal policy and will force local housing authorities to grapple with the potentially disparate impacts of harsh criminal record policies. The guidance is particularly timely, given that HUD issued a rule clarifying the burden of proof in disparate impact cases in 2013 and the Supreme Court affirmed that disparate impact claims are cognizable under the Fair Housing Act in its 2015 decision in Texas Department of Housing & Community Affairs v. Inclusive Communities Project, Inc. Additionally, while the Trump administration seems focused on rolling back Obama-era protections in some arenas, this guidance has remained in place. Even if withdrawn by HUD, the guidance has already inspired local policies restricting the use of criminal background checks in housing decisions potentially giving rise to a new era for those seeking housing after being released from prison. This Article first puts the problem of using criminal records to evaluate potential tenants into historical context, discussing the particular impact of the rising rates of incarceration on minority communities. Next, the Article delves into the guidance itself, examining what it does and does not require of housing providers, with a focus on public housing. Finally, the Article provides insight into what is missing from the guidance, what might be done to strengthen it, how advocates might use it, and how housing providers might work to limit both their legal exposure and moral culpability related to the disparate impact the use of criminal records in housing decisions has on minorities.
New Article: Chad Klitzman, College Student Homelessness: A Hidden Epidemic, 51 Colum. J.L. & Soc. Prob. 587 (2018). Abstract below:
This Note examines a surprising obstacle for an increasing number of college students: homelessness. After first offering an overview of legislation in the education field dealing specifically with the education of those experiencing homelessness, this Note then offers insights into how and why people experiencing homelessness tackle both the world of higher education and their respective institutions’ capacities to service their needs both in and out of the classroom. This exploration occurs largely through interview testimony conducted by the author. Many institutions lack the resources needed to service all of a students’ needs (food, clothing, etc.). After exploring the malleability of the higher education and social services systems, this Note argues that certain policy changes — legislation, community work, and change at the institutional level — would be beneficial in combatting this growing homelessness epidemic.
New Blog Post: Kalena Thomhave, Who Gets to Tell Stories About Poverty? Prospect.org, Nov. 14, 2018.
Posted in Access to Justice, Blog Posts, Criminalization of Poverty, deserving/undeserving, Homeless, Inequality, Measuring Poverty, News Coverage of Poverty, Rural Issues, Socio-Economic Rights, Urban Issues
New Article: Maia Hutt, This House is Not Your Home: Litigating Landlord Rejections of Housing Choice Vouchers Under the Fair Housing Act, Columbia 53 J. L. & Soc. Prob. 391 (2018).
Over 2.2 million low-income households participate in the federal Housing Choice Voucher (HCV) program. Voucher holders, who are disproportionately people of color and individuals with disabilities, are frequently discriminated against or denied housing by landlords. This Note argues that prospective tenants who are rejected by landlords for participating in the HCV program have a right of action against landlords under the Fair Housing Act’s disparate impact provisions. The Supreme Court’s recent decision in Inclusive Communities provides the necessary framework for evaluating these claims, and suggests that federal courts’ historical rejection of disparate impact claims brought by voucher holders is no longer good law. Integrating state and local source of income protection laws into the Inclusive Communities burden-shifting resolves the tension between state and federal approaches to source of income protection, and vitiates the rights of voucher holders.