Bear in mind that this is merely the opinion of the current Attorney General. The court has not yet agreed with him.
As Madison officials debate how best to deal with homeless people living and sleeping downtown, the federal government has weighed in on one thing the city probably can’t do: prohibit sleeping outside.
A recent statement of interest from the Department of Justice takes the position that criminalizing sleeping in public when no shelter is available violates the Eighth Amendment by essentially criminalizing the status of homelessness.
“(I)t is impossible for individuals to avoid ‘sitting, lying, and sleeping for days, weeks, or months at a time … as if human beings could remain in perpetual motion,’” the DOJ argues.
The statement was filed Aug. 6 in a case challenging a law in Boise, Idaho, that bans sleeping or camping in public places. A growing number of cities across the country are adopting such legislation, according to the National Law Center on Homelessness and Poverty. Of 187 cities surveyed, 18 percent have city-wide bans on sleeping in public while 27 percent prohibit sleeping in certain public areas.
If a city cannot provide adequate shelter — whether there are no beds available, an individual has exceeded maximum stay limitations or no shelter meets their disability needs — the statement argues that enforcement of these ordinances criminalizes the status of being homeless and violates the Eighth Amendment.
Madison is not currently considering an outright ban on sleeping outside, but Mayor Paul Soglin has introduced an ordinance that would impose time-limits on public benches downtown and would prohibit people from sitting or lying on public benches and sidewalks downtown.
The DOJ’s opinion is seemingly designed to push the taxpayers to provide more public shelters and other housing options. But what of the rights of people who are not homeless? Do they not deserve to be able to access their public buildings without stepping over drug-addled bums and and urine puddles? Lest you think I exaggerate, go visit Madison City Hall on a warm summer afternoon. And how much money must we extract from taxpayers to provide shelters? What of their rights to the product of their own labors?
As with all rights, they are subject to restrictions when they come into conflict with other rights. So while I actually tend to agree that the state has no business restricting the right of people to sleep in open public spaces, that right is subject to restrictions in order to make sure other people have safe access to the same public spaces.