Street Fight Part II: Cruel & Unusual

15:25Estela Lopez:Now, to be clear, this is Estella's story. Other people, and we'll hear directly from some of them later, they have a different perspective on how things got so bad and what we should do about it. And many of those people saw and still see the tents not as anything close to a solution to the problem, but as a modest improvement on the prior situation and for sure not a catalyst for more dire conditions.

15:50Kevin Cope:All right, so let's go ahead and just broaden things out a little bit here because I wonder, like, what is the case for the tent? Like, what is the pro-tent activist side? Where are they coming from? What's the best faith version of their argument? So, activists will say a tent provides protection from the elements.

16:09Estela Lopez:If you are a homeless person sleeping outside, perhaps you were pushed onto the street because you lost your job, you have a huge medical bill, and a tent is a place that will give you at least some privacy from other people, some protection from rain, from snow, from sleet, from winds, some amount of dignity in the sense that people don't have to watch you do your most private human things out in front of everybody else. It is incredibly imperfect. All activists would rather have people in housing. But from their perspective, a tent is certainly better than nothing. And a lot of homeless people will say that they prefer living on the street in a tent to a shelter because shelters can have rules.

16:58Estela Lopez:Like, you can't bring your partner. You can't bring your pet. As one advocate put it to me quite memorably, they smell like butts and feet. And so given the choice between two truly terrible options, people will often select the privacy of the tent. But I ran a version of that argument by Estella, who said, Wrong, wrong, wrong, wrong. Wrong, wrong, wrong, wrong. I don't buy that for a second. From her point of view, there is no privacy on the sidewalk. There is no dignity to living on the street. What dignity is there to lie on the street? Were they just defecated with rats crawling all over them?

17:43Estela Lopez:There are people on Skid Row who are losing their vision. There are people on Skid Row who have these infections. There are people out here with rotting teeth. There are people out here with open sores.

17:53Kevin Cope:That's dignity. That's better than going inside and seeking care and seeking help. No, I don't buy that. There is no privacy. There is no dignity. This is not how human beings should live. Well, she's clearly painting an awful and compelling picture, and it's something that I've seen here in New York. I've seen it in Chicago, San Francisco, in Austin, in Seattle. But it doesn't strike me as tied to the arrival of tents. So what specifically is she saying she saw come in the wake of all of these tents to Skid Row?

18:29Estela Lopez:Well, she also described other problems that crop up or get worse when you have a bunch of tents clustered together. Gangs are everywhere. These encampments, they attract bad actors who often go there to take advantage of vulnerable people.

18:47Kevin Cope:And many times they dictate, like there'll be a shot caller on every block who determines who can live there and who can't. If someone's getting a little too rowdy or getting too much attention. from either us or from the police, they tell that person to move. And if someone doesn't move, they are enforcers. They will light that person's tent on fire. That's called a skid row eviction. You've seen that. Oh, yes. You can just go up and down the street and see where there have been burned encampments.

19:16Estela Lopez:And she says that, you know, drug dealers are a constant presence in these encampments. And overdoses are just part of daily life there, as is disease. There was actually a major typhus outbreak in Skid Row years back. And of course, the privacy that a person could get from a tent, you know, in comparison to like a cardboard box or something like that, that privacy can also enable dangerous activity like rape. There was actually a survey done of current and former homeless women in Skid Row that found that nearly half had experienced physical or sexual violence in the past year.

19:55Kevin Cope:One of the most painful situations happened a couple of years ago when a woman who lived just down the street from us in a tent here, her name was Jamie. We knew that she suffered from mental illness. She was in her 30s, but with the mental acuity of like seven-year-old. And her face looked like a little cherub. I mean, she looked like a little girl. She wound up on Skid Row. Her family tried many times to, even through conservatorship, to regain control over her. And they had put her in these halfway homes, and she would run away and make her way back here. And she was being prostituted. She lived with her pimp in the tent.

20:41And many of the men who came for her, they looked at her as their little girl.

20:51Estela Lopez:Oh, God. and there was one summer when she came to our door and she was crying and saying that she had this terrible terrible pain and she couldn't articulate very well but she was there was no

21:07Kevin Cope:question she was in pain so we called the paramedics and they came and she yelled at them and turned on them and said leave me alone leave me alone and the paramedics said okay well we've got a dozen other calls, you know, see ya. And then she walked away. Anyway, Jamie was a staple in this area for many years. And despite everyone's efforts here, she died.

21:36Estela Lopez:From Estella's point of view, the combination of quasi-legally sanctioned encampments on the sidewalk mixed with the potency of these drugs and then just the size of what Skid Row has been able to become, that combines for this really just horrific cocktail of disorder and crime and just of desperation that someone should do something about.

22:02Kevin Cope:This is normal. Okay, this is normal. 50 blocks of this type of inhumanity and depravity. I feel completely helpless. until you say that the streets are not legal for habitation. You can't fix this. Because if the sidewalks are an option, there will always be individuals who choose the sidewalk, no matter what you offer them. After a short break, how the encampments that popped up in Skid Row made their way to cities across the country. and how a controversial court case made this kind of homelessness into a constitutional right. It's a hell of a story, and so as we say, stay with us.

23:06Kevin Cope:Support for this show comes from Rune. Anyone with a full and busy life can attest to that moment in the day when you just hit a wall. Mine shows up around 3 o 'clock. The coffee's done its job, and a fourth cup leaves me wired and useless. That's exactly what Rune is for. Staying focused and locked in when your energy starts to fade. And here's what got my attention. Rune is a pouch. The same kind we're all familiar with. The one you tuck under your lip. And honestly, the first time I saw it, I was like, wait, is this chew? Well, here's the twist. There's zero nicotine in Rune. None. It's a completely nicotine-free, sugar-free focus pouch.

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26:05Estela Lopez:And now, let's go to Idaho.

26:07Kevin Cope:With foothills rising above, Boise, Idaho is a place of beauty. But it's the city's less scenic quarters, dead ends and back alleys, that were Robert Martin's home on and off for 15 years. There were times I've slept in garage stairwells on cement, you know, up under overpasses on the rocks and dirt.

26:27Estela Lopez:So while Estella was in Skid Row watching these tent encampments go up, over in the city of Boise, Idaho, an important case was making its way through the courts. And it's a case that would profoundly influence what homelessness looked like on the West Coast and arguably around the country. It's called Martin versus the City of Boise. And basically it was a group of homeless people.

26:53Kevin Cope:Sitting here about like so and had a blanket wrapped up, had it laying down underneath me as a little bit of cushioning between me and the ground and just trying to catch a few winks.

27:01Estela Lopez:Who had all been cited and convicted of sleeping or camping outside in public spaces.

27:08Kevin Cope:In Boise, sleeping or camping on public property was against the law.

27:13Estela Lopez:And their argument was not unlike that Jones case that we'd heard about being made in Skid Row. There aren't enough readily available shelter beds in town for all of the homeless people that are there. They have to sleep somewhere. Where else are they supposed to go?

27:28Kevin Cope:You cannot criminalize the status of being a homeless person who needs a place to sleep.

27:36Estela Lopez:And they argue that arresting or fining people just for sleeping when they had no other option, that's not just wrong. It's unconstitutional. It violates the Eighth Amendment.

27:48Kevin Cope:It's cruel and unusual in the true sense of the word, because every single one of us, rich, poor, old, young, male, female, they need to sleep.

27:57Estela Lopez:And, Andy, now I will ask you, do you remember what the Eighth Amendment is, and can you summarize it for me?

28:03Kevin Cope:I know all the amendments, and so, no, I don't actually. I forget which is the eighth one.

28:08Estela Lopez:Okay, so the eighth, undersung. I've come to appreciate it. It is our shortest amendment. I think it's just like 16 words or something like that. And it says, excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

28:25Kevin Cope:So the argument is that You are inflicting a cruel and unusual punishment on people who, by their very nature of not having a home, have nowhere else to go. That this is using laws to target a population that is without other options.

28:44Estela Lopez:Right.

28:44Kevin Cope:I was like, I just need somewhere to lay my head overnight. And it's not like we left camp up, we always packed up and we always kept it clean.

28:54Estela Lopez:So, for example, this is a woman named Pamela Hawks. She was one of the plaintiffs. And she and her partner at the time had been homeless in Boise. And they would sometimes pitch a tent along the Boise River in this, like, wooded part of town. And she told NPR a while back that though she tried to stay hidden, she'd often get a ticket anyway.

29:16Kevin Cope:Kind of frustrating when they call it camping in public tickets, which then I feel it makes me seem like I'm right smack downtown. But in all reality, I was trying my best at the time to stay out of view of the public eye.

29:28Estela Lopez:Hawks, she racked up about a dozen citations.

29:31Kevin Cope:She got one on the 24th. She got one on the 25th.

29:35Estela Lopez:Which could lead to a night in jail.

29:38Kevin Cope:And of course, if you are so broke that you're already sleeping outside, you don't exactly have the cash in hand for the tickets and the fines. And so the further and further into the hole, you fall. Right.

29:50Estela Lopez:But on the other side, the city of Boise's view is basically like, first, we need to keep public spaces usable as public spaces. And also, hey, we're punishing an act, not a status. Like, we're not punishing homeless people for being homeless. This law would apply equally to anyone, to a homeless person, but also to a backpacker or to a protester. Right.

30:14Kevin Cope:And I'll just say that as a camper, as a backpacker myself, there are many places in the country where I want to camp, places where I have tried to camp, but then there's the big no camping sign. And the city's argument here is that they aren't targeting a specific population. They're not treating people cruel and unusually. They're treating everybody the same. The same way that they would kick me or any other camper out, they are treating every citizen the same under the law. Right.

30:41Estela Lopez:And so these two sides, they duke it out. It reaches the Ninth Circuit Court of Appeals. And in 2018, in a decision that would end up having some major repercussions, the judges, they agree with the homeless people, not with the city.

30:59Kevin Cope:And so what the Ninth Circuit held was that a law does constitute cruel and unusual punishment, violating the Eighth Amendment, when it attaches criminal sanctions to homeless individuals for sleeping outdoors on public property, when there's no alternative shelter available to them.

31:20Estela Lopez:This is Kevin Cope. He's a law professor at the University of Virginia.

31:24Kevin Cope:And that last part is key. It applies only when, say, there aren't enough shelter beds in the city or those individuals don't have some other place to go.

31:33Estela Lopez:And I talked to Kevin about this case because he and two other legal scholars, they wrote this paper arguing that even though the court described its decision as narrow, like in theory, it was only going to apply when there aren't enough shelter beds in any given town, that narrowness, that's not really how cities treated it.

31:54Kevin Cope:One of the points we hint at in the paper is that this creates something that's unprecedented in U.S. constitutional law, which is a positive right. It almost gives people who have nowhere else to go a license to occupy some parcel of public land. And that's pretty unusual for U.S. constitutional law.

32:21Estela Lopez:After this ruling, many cities on the West Coast and even in some other parts of the country, they really just pull back on the enforcement of laws that ban people from sleeping in public. And largely as a result, according to Kevin, encampments, they explode.

32:41Kevin Cope:There are more than a thousand unsheltered people living on the streets of an encampment just a little bit east of the state capitol known as the Zone. It wasn't that these didn't exist at all before Martin, but they did really start to grow after Martin. A near 450 % increase in people camped out on the streets in this one concentrated area compared to this time last year. And this was not limited just to the Ninth Circuit, but also to other places that weren't formally bound by the decision, kind of used it as a political and legal tool to argue for the same sorts of policies. Encampments for people without a home are growing.

33:21Kevin Cope:More parks are turning into temporary homeless shelters. There have been as many as 60 people sleeping in dozens of tents at times. There are an estimated 431 tents in 42 parks. And it's part of the reason that they're lax due to the fact that it's just kind of a complicated ruling that says, you know, it is illegal to be encamped on a city sidewalk or in a city park if there are enough shelter beds available. But if there aren't enough shelter beds available, then like this is not only legal, but it's their constitutional right. And the cops are just not, you know, up to date immediately on the inventory of shelter beds, like on a nightly basis.

34:00Estela Lopez:Yeah, it's like this logistical wormhole that opens up because it's like, okay, available shelter bed is a bed that's in a Christian shelter that has some religious requirements available to someone who maybe they're an atheist, maybe they're Jewish, maybe they're Muslim. Like, what does available really mean? And also, a lot of these cities, they're liberal.

34:25Kevin Cope:City officials may have been sympathetic to the arguments of the homeless and homeless activists. And so this kind of gave them a political cover to do maybe what they wanted to do all along.

34:37Estela Lopez:And maybe more important than all of that is these cities, they do not want to get sued.

34:42Kevin Cope:They were so unclear on exactly what the holding required that they erred on the side of caution and said, look, we're just going to stop enforcement altogether.

34:51Estela Lopez:And they had good reason to be like advocates and legal aid organizations. They file a wave of lawsuits in the aftermath of this case, Martin v. City of Boise, that are trying to hold cities to this new standard.

35:04Kevin Cope:I feel like I understand this from the enforcement side, like why the enforcement changed. But I don't necessarily feel like I understand it on the other side of things because it's not like America's homeless are like reading up on, you know, the latest Ninth Circuit ruling. It feels like how would they even know that the law had changed?

35:26Estela Lopez:Yeah. So you might not be reading like court documents for the latest ruling from the Ninth Circuit, but you notice if you stop getting ticketed and arrested, right? Like you notice if you're interacting with the police less, you notice when the enforcement in your area changes, you're actually like pretty attuned to that. And Kevin and some of his colleagues, they note that a lot of homeless people, they don't like living in shelters. And so if given the choice between sleeping on a cot in a big room or sleeping in a tent where you have some privacy, a lot of people are going to choose the latter.

36:01Estela Lopez:And there's some evidence that people who were in shelters before Martin start choosing to sleep outside after Martin. And when COVID hits, the economy obviously crashes and shelters, they lower their capacities to stop the spread of disease. That doesn't help things. Encampments, they grow even more. And so do the problems that come along with them.

36:27Kevin Cope:New encampments have been popping up throughout LA in the last five months. It's a trend you've probably seen more of during the pandemic. City of Dallas says complaints about homeless encampments are up 45 percent. Frustrations in the city of Campbell over a growing homeless problem.

36:43Estela Lopez:There's open drug use, there's assaults.

36:46Kevin Cope:It's near our schools, near our work, near our parks. It really affects everybody. Police in Grand Rapids are investigating an assault at a homeless camp on the city's west side. The homeless encampment individuals walked over, reached up, sexually grabbed one of my students, and then took off down the road.

37:06Estela Lopez:There's also worsening danger to the people who live outdoors in these conditions.

37:11Kevin Cope:A stunning spike in deaths reported tonight in the homeless population in L.A. County, and the flood of deadly drugs on our streets is getting the blame. 216 people died last year unsheltered, which this new report says is 10 times the rate of the general population.

37:27Estela Lopez:And when faced with the reality of living next to these encampments, the residents of these cities start to rethink things.

37:35Kevin Cope:We demand to know our elected officials' response to the emergency humanitarian situation. To the people in the neighborhood, residents who have never experienced this stuff, I think it's traumatizing to those folks.

37:51Estela Lopez:And there became what felt like an increasing bipartisan consensus that we need to do something. But what is that something?

38:04Estela Lopez:On the next episode, we hear from the two sides of this debate.

38:09Kevin Cope:Homelessness is a symptom, not a cause. If we do not fix what's causing homelessness, homelessness is going to continue to increase. All they want is more taxpayer-funded housing.

38:25Estela Lopez:One site says we need more law and order.

38:27Kevin Cope:These aren't people that just, like, missed a paycheck and we need to get them help and get back. This is a drug problem that needs mandatory treatment, not handing people needles and pipes and saying, oh, here's a million-dollar bed. If you're a fentanyl zombie, you don't care about a million-dollar empty bed because you're just high, you sober up, and you go get high again.

38:48Estela Lopez:While the other says the answer has been staring us in the face.

38:52Kevin Cope:So how did they do it? We did it by giving homes to homeless people. Who? You did what? We gave homes to the homeless.

39:05Estela Lopez:Stay tuned.

39:09Kevin Cope:The next episode will be available to everybody next week, but if you'd like to hear it right now and also support our small team, you can do so by becoming a subscriber. Just click on the link in our show notes, or you can visit us online where you can leave a comment, ask us your questions, look at some photos. All of that is over at longview.report. Thanks for listening, and we'll see you soon.

40:05Kevin Cope:Thank you. Start today at equinox.com.