By Kevin Prussia and Ruth Bourquin
The Massachusetts Attorney General’s Office (AGO) recently issued an important decision regarding government treatment of unhoused individuals who sleep outside in the Commonwealth. The decision concludes that criminal law enforcement strategies aimed at prohibiting unhoused individuals from sleeping outside are unconstitutional, unless the government can ensure that those affected have access to another adequate shelter option.
State and local government officials, including law enforcement agencies, should take heed—both to avoid running afoul of the law and, more importantly, to address the public health and safety imperatives of homelessness in the Commonwealth effectively and humanely.
Hundreds of thousands of people, in Massachusetts and across the country, have no access to housing. This humanitarian crisis can be attributed to several factors, including skyrocketing housing prices; barriers to creating more affordable housing, including opposition from members of communities where housing would be sited; the impact of mental health, substance use and other disability challenges; and the negative effect of criminal history on access to housing. Communities frequently lack the resources to address this crisis; and local shelters are frequently full or cannot accommodate individual medical or disability needs.
As a result, many unhoused people are forced to sleep outside, including on public streets and other public property. Unhoused individuals living outside often seek to protect themselves from the elements by erecting tents or other forms of temporary shelter. In the cold climates of the Northeast, such measures can be necessary for survival.
In October 2021, the City of Boston, under then-Acting Mayor Janey, issued orders that included the threat of criminal sanctions against unhoused individuals who stay on public property in Boston and erect or maintain tents or other forms of temporary shelter. Pursuant to these orders, unhoused people with nowhere else safe to stay were forced to leave encampments in and around the area at Massachusetts Avenue and Melnea Cass Boulevard (commonly referred to as “Mass. and Cass”). The displaced included those who, due to medical needs and disabilities, could not safely reside in Boston’s congregate shelters.
In response, the American Civil Liberties Union (ACLU) of Massachusetts, together with WilmerHale, filed a class action lawsuit on behalf of several unhoused people. The suit challenged these forced removals as violations of the cruel and unusual punishment protections in our state and federal Constitutions. At the same time, a group of medical and public health experts issued a set of policy proposals for public health-focused solutions to the crisis, de-emphasizing criminal prosecution.
Soon thereafter, effective January 2022, the City adopted procedures requiring that, before displacing individuals from Mass. & Cass, the City had to offer shelter or other housing options that accommodated those individuals’ disability needs.
The Attorney General’s October 2022 Ruling
In April 2022, the Town of Scituate, adopting a similar approach to that set forth in the October 2021 Boston orders—enacted a by-law that would have barred any person from setting up a tent or camp, sleeping in a vehicle, or sleeping in the open between the hours of 8 p.m. and 8 a.m. without the permission of the Town’s Select Board. The by-law created no mechanism by which individuals could seek such “permission.”
Before the by-law could take effect, it had to be reviewed and approved by the Attorney General’s Office (AGO) Municipal Law Unit. The ACLU of Massachusetts submitted a letter asking that the AGO not approve the by-law, because it constituted cruel and unusual punishment and violated the equal protection rights of unhoused persons.
In a development that should serve as a caution to other communities relying on law enforcement-centered approaches to these public health issues, on October 11, 2022, the AGO concluded that the proposed Scituate by-law violated the cruel and unusual punishment clause of the Eighth Amendment. The decision carefully reviewed and summarized federal court decisions from around the country, including a recent opinion from the U.S. Court of Appeals for the Ninth Circuit, holding that government “cannot, consistent with the Eighth Amendment, enforce […] anti-camping ordinances against homeless persons for the mere act of sleeping outside with rudimentary protection from the elements, or for sleeping in their car at night, when there is no other place in the City for them to go.” Johnson v. City of Grants Pass, 50 F.4th 787, 813 (9th Cir. 2022) (formerly Blake v. City of Grants Pass).
The Attorney General concluded, as the Ninth Circuit had in City of Grants Pass, that the fact that a by-law or similar measure may initially be enforced through “non-criminal” disposition procedures does not mean that the law is not a criminal law enforcement measure where criminal enforcement may follow.
The Attorney General’s recent decision emphasizes that:
The Supreme Judicial Court has repeatedly affirmed that the law of Massachusetts “does not permit punishment of the homeless simply for being homeless.” Commonwealth v. Magadini, 474 Mass. 593, 601-02 (2016) (citing Commonwealth v. Canadyan, 458 Mass. 574, 579 (2010) …. The Scituate by-law, in its current form, does just that.
Because the by-law imposes criminal punishment for sleeping in public spaces, with no required assessment of whether an unhoused person subject to the by-law has adequate alternative shelter, it violates the Eighth Amendment, and we disapprove it on this basis.
Other Massachusetts communities should pay attention. The chief law enforcement officer of the Commonwealth has made clear that criminal law enforcement against unhoused individuals, merely for sleeping on public land, is unconstitutional—unless the community can ensure that impacted unhoused individuals have an alternative and appropriate sheltering arrangement actually available to them.
In the words of local experts, “Public health crises require public health solutions.” Law enforcement approaches targeting unhoused persons are not only legally suspect; they are ineffective and short-sighted. State and local officials—including our former attorney general and now governor-elect—should work together to develop more humane and effective long-term solutions. Such solutions include more affordable long-term housing, more temporary shelters that accommodate the needs of those with disability challenges, more voluntary treatment programs for those with substance use disorders, and greater employment and income support options for those facing housing instability.
Massachusetts can and should be a leader in developing such solutions. Public health and safety demand them. Our state and federal Constitutions require them.
Kevin Prussia is a litigation partner at WilmerHale and a member of the firm’s global management committee. He serves on the Council of the Boston Bar Association and currently serves as the Chair of the Foundation of the ACLU of Massachusetts. Kevin was co-counsel in the case of Geddes v. City of Boston. After graduating from Boston University School of Law in 2006, he clerked for the Hon. Richard G. Stearns in the District of Massachusetts.
Ruth Bourquin is the Senior & Managing Attorney at the ACLU of Massachusetts and a member of the Boston Bar Association. Prior to joining ACLUM in 2017, she worked for legal services organizations in MA for approximately 20 years, focusing on the needs of families with children living in poverty and experiencing homelessness. After graduating from Harvard Law School in 1982, she clerked on the United States Court of Appeals for the 11th Circuit, served as an Assistant Attorney General and then the Deputy General Counsel to the MA Senate Committee on Ways and Means, and practiced plaintiffs’ side employment law. Ruth was co-counsel in the case of Geddes v. City of Boston and co-authored the letter to the Attorney General’s Office concerning the Scituate ordinance discussed in this article.