The days are getting longer and winter is halfway over, but that is little comfort to the almost 200,000 Americans who sleep unsheltered on the streets each night. The last 10 days of January are set aside for a point-in-time snapshot of homelessness in the United States. Head counts are taken at shelters and volunteers throughout the nation walk the streets and alleyways of their communities to find, speak with and tally the homeless. Based on last year’s count, the United States Department of Housing and Urban Development estimated that the unsheltered homeless population rose by 2 percent.
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Property rights of the homeless
People who are homeless have the same property rights as everyone else. Regardless of the monetary value of their property, the government may not search or seize a person’s belongings without a warrant or, in exigent circumstances, probable cause of a crime. Property that is unlawfully seized must be returned. There is an exception for abandoned property, but abandonment must be reasonably inferred by objective facts, including the words and actions of the property owner.
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Cruel and unusual punishment
Fundamental fairness requires that people are inherently free to exist; the government can punish offensive conduct but not innate personal characteristics. In 1962 (Robinson v. California), the Supreme Court held that a law criminalizing the status of being addicted to narcotics violated the Eighth Amendment’s prohibition against cruel and unusual punishment. The court distinguished addiction itself, which is involuntary, from acts associated with addiction—narcotic possession and use—that can be outlawed.
In 1968 (Powell v. Texas), the court again applied this illness/action distinction, but this time upheld a law that criminalized public drunkenness. In his concurring opinion Justice White noted, however, that it would violate the Eighth Amendment to enforce a public drunkenness law against a “chronic” alcoholic who was homeless and thus could not avoid public intoxication.
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The right to travel and relocation programs
The right to travel is another fundamental liberty protected by the due process and equal protection clauses. In Shapiro v. Thompson (1969), the Supreme Court applied this right to strike down one-year residency requirements for access to public welfare benefits. The court recognized that states may impose general residency requirements for certain government programs but held that the length of those requirements must be justified by a compelling government interest that is greater than the mere desire to spend less money.
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