An Affordability Crisis
Florida’s cost of living rocketed out of control — as it did in the rest of the country — following the COVID-19 outbreak. The increases in rental rates by landlords, the spiked inflation following the pandemic, and turmoil faced by many who lost jobs and income over the past few years means that for many, living in Florida has become nearly impossible to afford. According to the Department of Housing and Urban Development (HUD), this affordability crisis has led to an almost 20 percent increase in Florida’s number of unsheltered homeless between 2022 and 2023 alone. The crisis has taken a particularly hard toll on families (22 percent increase) and seniors (now around one-third of the state’s unsheltered homeless population).
One silver lining is that — as success stories have shown — there are ways to properly and adequately work to solve homelessness. Housing First initiatives have been around for decades, and there are municipalities within the United States that have reached “functional zero” homelessness among targeted populations. (Functional zero homelessness occurs when there is an equal number of people going into and coming out of homelessness within a month). Unfortunately, while some policies are designed to address homelessness at its core, others take the out-of-sight-out-of-mind approach in the form of flagrant anti-vagrancy laws that essentially criminalize people for not being able to afford a place to live. One such policy passed by the Florida Legislature during the 2024 session, HB 1365, prohibits local governments from allowing homeless encampments on public lands (with one, inadequate exception).
Housing First initiatives have been around for decades, and there are municipalities within the United States that have reached “functional zero” homelessness among targeted populations.
Florida is one of multiple governments that have introduced or passed[1] [2] similar legislation. In April 2024, the Supreme Court heard Grants Pass v. Johnson, which concerns a law that mirrors HB 1365, and released its opinion on the case at the end of June 2024. However, before delving into Grants Pass and its repercussions, it is important to remember the history of anti-vagrancy laws in Florida and the United States as a whole.
A Retributive Solution, History Repeated
The United States has a deeply rooted history in criminalizing people who are experiencing homelessness. Following the end of the Civil War, Congress passed The Vagrancy Act of 1866 (part of the Black Codes). These laws were generally aimed at formerly enslaved people, as many did not yet have permanent housing, and many were searching for family members sold off in prior years. Florida had codified similar vagrancy laws during its 1865 Constitutional Convention. The state housed prison camps where formerly enslaved people were then effectively re-enslaved under a racist and prejudicial legal system that leased them out for free labor.
Though the system of convict-leasing eventually ended, over 130 years later, Florida was at the center of an anti-vagrancy law controversy. In 1992, Pottinger v. City of Miami was heard in front of the Supreme Court. Pottinger was a class action lawsuit brought by nearly 6,000 plaintiffs who had property seized and/or were arrested for doing “life sustaining activities” like sleeping and bathing. These arrests would often come without formal charges. While this may seem like a good thing because a criminal record is avoided, the lack of charges meant that the plaintiffs had little to no recourse when their personal belongings were seized permanently. Pottinger argued that arrest following crimes of vagrancy was akin to making it illegal to be homeless — a condition beyond most (if not all) of the plaintiffs’ control. The court agreed, finding the city of Miami in violation of the Fourth, Eighth, and Fourteenth Amendments to the U.S. Constitution.
Following Pottinger, the city of Miami entered into a consent decree that those experiencing homelessness be offered shelter by police before being arrested when engaging in life-sustaining activities in public. The consent decree also prevented arrests of someone experiencing homelessness for misdemeanors involving life-sustaining conduct; additionally, it prohibited law enforcement from destroying personal property that is “readily recognizable as property of a homeless person”. In 2019, to the chagrin of housing advocates and the ACLU, the city successfully dissolved the consent decree with the argument that the issue was solved due to an increase in community services for people experiencing homelessness, and therefore would not need further upkeeping. Since then, there has been an uptick in anti-vagrancy actions and ordinances in and around Miami.
Grants Pass and HB 1365
The case of Grants Pass v. Johnson concerns a municipality’s authority to ban encampments on public lands. The crux of the issue is whether such a law creates an Eighth Amendment constitutional violation: is it cruel and unusual punishment to criminalize someone for a situation that is mainly out of their control due to their status of not having a home? The Supreme Court decision addresses a split between the Ninth and Eleventh Circuit Courts of Appeal. The Ninth Circuit held that these types of policies were an Eighth Amendment violation because they punished the “status” of those at risk of penalization for “involuntary conduct.” The Eleventh Circuit stated that it was not a violation because homelessness should not be considered a “status” under Eighth Amendment “conduct” vs. “status” jurisprudence; and therefore, only the conduct was punished — lack of status means that the conduct was not considered “involuntary.”
Taking advice from the court –— and decades of research — it appears the best step forward will be implementing more Housing First options. However, in order to do so, the Florida Legislature must first recognize that Housing First is the most cost-effective and results-based approach to addressing and ending homelessness.
The measure passed by Florida lawmakers, HB 1365, prohibits local governments in Florida from allowing any person to “regularly engage” in public sleeping or camping on public property, buildings, and/or sidewalks and streets. There is an exception available for encampments opened by a municipality for less than a year if they do not adversely or materially affect property value or the safety and security of residential or commercial property. However, there are no included definitions for the level of effect to be considered “adverse” or “material”; almost any encampment would be disqualified from this exception if it is anywhere close to public resources or areas containing other Florida residents.
As the prohibition in HB 1365 is directly in line with the law at issue in Grants Pass, the court’s finding that such laws do not violate the Eighth Amendment’s protection against cruel and unusual punishment upholds the draconian anti-vagrancy law. While doing so, the court discusses the need of housing over shelter beds, while providing no exception for municipalities with inadequate shelter beds to accommodate their homeless populations. Taking advice from the court –— and decades of research — it appears the best step forward will be implementing more Housing First options. However, in order to do so, the Florida Legislature must first recognize that Housing First is the most cost-effective and results-based approach to addressing and ending homelessness. Until then, Floridians who cannot get into a camp due to the lack of one, the lack of space, or not qualifying in the first place will most likely face fines and incarceration. What Florida intends to do with its residents who cannot later find work or housing due to criminal charges and fines is up in the air.
An Exercise in Empathy
Rather than criminalizing homelessness, lawmakers in Florida and in other states should consider other effective ways to prevent and address homelessness through the holistic approach of Housing First programs. The Housing First model was developed in New York in the early 1990s and has been more widely used since the mid-2000s. The belief behind Housing First is just that: when a person does not have a safe and secure space to live, it makes addressing every other challenge in life much more difficult. By providing someone with a home to live in, along with “supportive services” like employment attainment, daycare, mental health counseling, and rehabilitation for substance abuse, a person has a sturdy ground on which to build a more stable and secure life. In 2019 alone, permanent supportive housing programs (a type of Housing First) showed an up to 96 percent housing retention rate among those who formally participated in the programs nationwide. There were also significant drops in the need for social services, meaning significant savings for the average taxpayer even with the initial costs of Housing First programs. In short, for every dollar spent on Housing First initiatives, $1.44 is saved. There are many communities within the United States with success stories of reaching “functional zero” homelessness with housing first programs, though they do this by targeting subsects of the homeless population like veterans or the chronically homeless.
As rent prices become unattainable for the average Floridian, the compassionate choice of avoiding anti-vagrancy laws and funding Housing First initiatives emerges as the wiser and more forward-thinking approach.
Policy choices that recognize the humanity and dignity of individuals are not only more compassionate — they are also more impactful. Research shows that regional variation in rates of homelessness can be explained by the costs and availability of housing. The upfront costs of taking a proactive approach are mitigated when other costs decrease, such as the cost of arresting people experiencing homelessness or forcing them to use more costly emergency medical services. As rent prices become unattainable for the average Floridian, the compassionate choice of avoiding anti-vagrancy laws and funding Housing First initiatives emerges as the wiser and more forward-thinking approach.
Notes
[1] Georgia, Kentucky, Tennessee, Texas, Utah, and municipalities in multiple states
[2] Overturned in Missouri.
