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The Criminalization of Homelessness: Explained

Illustration by Hisashi Okawa

The Criminalization of Homelessness: Explained

In our Explainer series, Justice Collaborative lawyers and other legal experts help unpack some of the most complicated issues in the criminal justice system. We break down the problems behind the headlines—like bail, civil asset forfeiture, or the Brady doctrine—so that everyone can understand them. Wherever possible, we try to utilize the stories of those affected by the criminal justice system to show how these laws and principles should work, and how they often fail. We will update our Explainers quarterly to keep them current.

Most evenings, Aguirre Dick rides his bike about three miles from the streets of Waikiki in Honolulu to the slopes of a volcano, where he sleeps. If he doesn’t make that trek, he could be arrested. A 2014 law made it illegal to sit or lie down on the public sidewalks in Waikiki. As a result of this law, those without homes, like Aguirre, live in constant fear of being pushed into the criminal justice system simply because they are too poor to own or rent lodging.

In San Diego, police arrested a pregnant Alexis Leftridge as she slept in her tent and jailed her for several days. Leftridge became homeless after losing her nursing job in 2014 — without money for rent, she was evicted. To get out of jail, she agreed to an order to stay away from the area, but she now has so many that she does not know where to go. According to pleadings filed in a lawsuit against the city, she is afraid she will be arrested for “walking along the wrong street.” She has subsequently given birth to a baby boy and currently has a room at a shelter. But, because the shelter is within the “stay away” area, she is at risk of re-arrest.

In Houston, Texas, Spencer Stevens became homeless in 2015 after losing his job as a forklift operator. He has congestive heart failure, which prevents him from taking another manual labor job. Living under the highway median, he cooks meals on his griddle. If legal challenges fail, he could be arrested for both living and cooking there. Houston has made it illegal to block a sidewalk, stand on a roadway median, sleep on public property or in a makeshift shelter, or have a heating device in public.

Every day, law enforcement officers across the country issue tickets to those experiencing homelessness as they engage in basic, life-sustaining behaviors, like sleeping on the streets or cooking a meal in public on a griddle. Prosecutors then frequently charge those individuals with crimes. By relying upon law enforcement to address an issue that should more appropriately be considered as falling within the domain of public health, communities are expending a tremendous amount of public money unnecessarily and ineffectively, and exacerbating the underlying causes of homelessness. Below, we discuss the destructive and often devastating human and financial costs of criminalizing homelessness in America.

1. Homelessness is a chronic problem.

Experts believe that as many as two million people in the country experience homelessness at some point in a given year, with about 500,000 living without a home each night. [Alastair Gee, Liz Barney, and Julia O’Malley / The Guardian] About 15 percent of those are chronically homeless, meaning they have been without a home for years. [Alana Semuels / The Atlantic]

Racial minorities comprise a significant percentage of the population experiencing homelessness. While African Americans represent about 12.5 percent of the general population, they represent over 40 percent of the homeless population. [Eddie Kim / The Guardian]

In some communities, there has been a significant increase in the population of Latinos facing homelessness. [Esmeralda Bermudez and Ruben Vives / Los Angeles Times] Many experience acute fear or face unique obstacles as a result of their uncertain legal status. [Leslie Berestein Rojas /] Consider Hector, a homeless man in New York who does not utilize shelter services because he is afraid that he will be identified and then deported. He lives near the train tracks along with several others who have refused to enter shelters since President Trump’s immigration crackdown. [Caroline Spivack / Brooklyn Paper]

Military veterans confront homelessness at an alarming rate. More than 10 percent of the adult homeless population has served in the military. [FAQ / National Coalition for Homeless Veterans]

Survivors of domestic violence also experience high rates of homelessness. A recent study in Minnesota showed that 35 percent of homeless women reported domestic abuse as a cause. [Stephanie Nelson-Dusek / Post Bulletin]

A 2017 nationwide survey revealed that, on a given night, almost 41,000 people experiencing homelessness were 24 years old or younger, 12 percent of whom were below age 18. Many of these young people have suffered significant trauma. Youth who identify as LGBTQ, have special needs or disabilities, or are pregnant or parenting are also more likely to become homeless. [Youth and Young Adults / National Alliance to End Homelessness]

Half of those experiencing homelessness have a physical or mental disability, or both. [Gale Holland / Los Angeles Times]

2. The criminalization of homelessness is growing.

Hundreds of jurisdictions across the U.S. have criminalized homelessness, and the trend shows no signs of abating. Laws criminalizing homelessness have multiplied in the last 10 years in 187 studied cities. [National Law Center on Homelessness and Poverty / Housing Not Handcuffs] The report calls out several jurisdictions in a “Hall of Shame” section, including Honolulu, Denver, and Dallas. [Dennis Oda / Honolulu Star-Advertiser]

In 2016, Honolulu adopted a spate of laws that target homeless people, and police ramped up enforcement of these “quality of life” ordinances. Why? Pressure from the business and tourism industry, which in the past has funded airfare to the mainland for homeless people who came to Hawaii. [Adam Nagourney / The New York Times]

In Denver, the state’s 76 largest cities have, as a group, passed 351 ordinances that target homeless people, including bans on camping and bans on sharing food outside. [Bryce Covert/ The Appeal]

In Dallas, police issued 11,000 “sleeping in public” citations between 2011 and 2015. Police also stopped people for loitering, panhandling, and for sleeping in public spaces in the city — even though the city lacks sufficient shelter beds. [Stephanie Kuo / KERA]

In late 2017 in Portland, Oregon, the Columbia Sportswear CEO called for more policing of the homeless population after moving his company headquarters downtown. [Tim Boyle / Oregon Live] In response, the head of the Business for a Better Portland urged the city to adopt “holistic and collaborative solutions” to systemically address the underlying causes of homelessness. [Ashley Henry / Oregon Live] Activists also fired back by protesting the city’s “no-sit” laws in front of Columbia Sportswear’s downtown store, forcing the company to close for the day. [Abe Brettman / Oregon Live]

3. Criminalizing homelessness does nothing to address its root causes.

The causes of homelessness vary, but experts largely agree that both structural and individual factors play a role. Structural factors include poverty, inadequate affordable housing, inadequate access to meaningful public assistance, decreased availability of mental health care, and discrimination. [Jonathan Hafetz / Fordham Urban Law Journal]

In Detroit, for example, advocates report that an increasing number of families experience homelessness because the city lacks affordable housing and has a high rate of evictions. About 3,000 children experience homelessness each year in Detroit. [Violet Ikonomova / Detroit MetroTimes]

Similarly, in San Diego, skyrocketing rents, low vacancy rates, and a severe shortage of affordable housing have placed the city at a “tipping point.” Over the past year, there has been a 14 percent increase in people living on the streets in San Diego. This situation is likely to grow worse, as California has cut $200 million from the city’s affordable housing programs over the past six years. [Scott Wilson / The Washington Post]

There are also personal factors that can cause homelessness, including traumatic events, family crises, and the onset of mental or physical problems. [Jonathan Hafetz / Fordham Urban Law Journal]

In an interview with NPR, David Pirtle described why, even when temperatures dropped below freezing, he stayed on the streets. Suffering from schizophrenia, he feared large crowds and experienced paranoia, so he avoided shelters: “All I can say is that my fear of the unknown, of what might be waiting for me at that shelter, was worse than my fear of the known risk, you know, of staying out on the street.” [Jay Evensen / Deseret News] [Talk of the Nation / NPR]

Dorothy Edwards spent eight years on the streets of Pasadena, California, where she slept in alleys and ate food out of Dumpsters, smoking meth to ward off depression. During that time, she was repeatedly sexually assaulted. She checked herself into a psychiatric ward on numerous occasions, but kept returning to the streets. It took eight years for counselors to diagnose her with depression and post-traumatic stress disorder. Now receiving adequate treatment, she lives in an apartment with her dog and is actively looking for a job. [Rick Jervis / USAToday]

4. These laws criminalize what for many is life-sustaining behavior.

Instead of addressing the root causes of homelessness, states and cities have adopted hundreds of laws making it harder for homeless people to survive.

Camping, sleeping, or lying down in public

According to a 2014 analysis of 187 American cities by the National Law Center on Homelessness & Poverty, over half prohibited camping, sitting, or lying down in certain areas, and a third banned these activities citywide. [Robert Rosenberger / The Atlantic] Cities often outlaw these practices without providing additional shelter beds. [Emily Badger / Washington Post].

In Houston, a city ordinance, enacted allegedly for “safety,” makes it illegal to sleep in a tent, box, or other makeshift shelter on public property. A federal district judge issued a temporary restraining order against the ban, writing that those individuals targeted by the ordinance are “involuntarily in public, harmlessly attempting to shelter themselves — an act they cannot realistically forgo, and that is integral to their status as unsheltered homeless individuals.” [Gabrielle Banks / Houston Chronicle] But in December, the judge lifted her order. [Michael Graczyk / Boston Globe]

In Dallas, one individual, Sarge, has been ticketed repeatedly for sleeping in public, something he must do to survive. He estimates that he has received around 75 tickets over the years. [Eric Nicholson / Dallas Observer]

In Austin, a man named Ross reports being “herded like cattle” because of the city’s anti-camping law. “They have a law saying you can’t sit down. So if you don’t have anywhere to live and all the homeless shelters are full, then where do you go? Do you walk in a circle 24 hours a day? You have to sleep and if you slow down to sleep you go to jail for it, which I’ve done, that’s pretty much where you get to sleep.” [Kylie McGivern / KXAN]

Begging in public (panhandling)

According to the 2014 National Law Center on Homelessness & Poverty report, there was a 25 percent increase in anti-panhandling laws between 2011 and 2014. [Scott Keyes / Think Progress]

In 2014 in Denver, police arrested 300 people for panhandling. [Scott Keyes / Think Progress] In New York, police arrested a homeless man after he asked a police officer if he had a dollar to spare. [Fernanda Santos / New York Times]

Jason Metts of Fayetteville, North Carolina, reports that he is disabled and can’t work. “To survive,” he told a reporter, he has started panhandling. Police have arrested him seven times. “I’m not stealing, I’m not robbing people, and I’m not approaching anybody. Those that give to me roll down their windows, I’m not scaring them,” Metts stated. [Sheena Elzie / CBS North Carolina]

Encroachment — storing property in public ways

Laws across the country make it illegal for individuals to place property on public ways. For those with no home, there is no other place to store their belongings.

In San Diego, police cited Army veteran Eric Arundel several times after he placed his tarp, bedding, clothing, medication, and toiletries on the sidewalk. He suffers from pneumonia and uses the tarp to stay warm. Also in San Diego, police cited Jeff Hayes for encroachment, even though he had nowhere to store his belongings. Hayes became homeless as a result of suffering from multiple sclerosis, which made it impossible for him to work. He had no criminal record until receiving the encroachment charge. He then missed his court date because he was in the hospital for sepsis. Both Arundel and Hayes are plaintiffs in a federal lawsuit challenging the law. [Lisa Halverstadt / Voice of San Diego]

Living in vehicles

City laws often preclude people from sleeping in their parked cars during certain hours of the night.

Nearly 7,000 people live in their cars in Los Angeles, but the city recently enacted regulations banning parking “for habitation purposes” on residential streets from 9 p.m. to 6 a.m. New ordinances also make it illegal to live in a vehicle parked within a block of schools, daycare facilities, and parks. [Bianca Barragan / Curbed Los Angeles] Santa Monica, Malibu, and Culver City have similar bans in place [Dean Kuiper / LA Mag], as does San Diego. [Mike Madriaga / San Diego Reader]

Food sharing

Controversial city ordinances ban organizations from feeding people in public, claiming that doing so constitutes a public health and safety risk.

Police arrested seven people in Tampa, Florida, for distributing food to homeless people without a permit. Members of the Tampa-based organization Food Not Bombs stated that the arrests prove the city is criminalizing compassion. [Kathryn Varn / Tampa Bay Times]

In response to a hepatitis A outbreak in San Diego, the El Cajon City Council passed an emergency ordinance prohibiting food distribution on any city-owned property. In November, activists handed out 100 bagged lunches, calling the ordinance “a punitive measure to dehumanize and criminalize the homeless.” [Deborah Sullivan Brennan / San Diego Union Tribune] The city finally lifted the ban in late January. [Karen Pearlman / San Diego Union-Tribune]

In Atlanta, on the Sunday before Thanksgiving 2017, two Food Not Bombs activists went to a local park to hand out food to the homeless, as they do every Sunday. But on that day, police ticketed them, citing a rarely enforced law requiring organizations to obtain a permit before distributing food. According to a flier distributed by the Atlanta Department of Public Safety (that cites no actual evidence), enforcement is necessary because “many people become dependent on these activities, leading them to stay on the streets instead of seeking the help and support they truly need.” [Zaid Jilani / The Intercept]

5. Laws criminalizing homelessness make the problem worse.

In addition to being unfair and often inhumane, these laws exacerbate the problems they purport to address.

Individuals who are saddled with criminal records for engaging in survival activities like sleeping on the street face steeper challenges finding jobs, housing, or other benefits like food stamps, thus perpetuating the cycle of homelessness. [Jonathan Hafetz / Fordham Urban Law Journal] Under federal law, people who have spent more than 90 days incarcerated lose their “chronic homelessness” status and are no longer a priority for permanent housing. [International Human Rights Clinic / Yale Law School]

Stay-away orders—often issued alongside tickets for sleeping in public—also keep people from accessing social services that they urgently need. In San Diego, for example, most social service providers are downtown. But police regularly issue stay away orders from these locations to those found sleeping on the street. This means they can’t get food stamps or other assistance without risking arrest. [Lisa Halverstadt / Voice of San Diego]

Similarly, stay-away orders cause people to lose touch with service providers who are helping them find housing. According to one such service provider in Baltimore, when homeless people seeking housing  “are forced out of their (outdoor) home bases and seek refuge in other parts of town, people often lose touch with the points of contact we have for them. Thus, they lose their long-term housing opportunity.” [National Law Center on Homelessness & Poverty / Criminalizing Crisis]

These charges often carry fines that people cannot pay—and unpaid fines eventually lead to jail time. In Dallas, for example, citations for sleeping in public often carry $150-$300 tickets. Most homeless individuals cannot afford these fines, and may, as a result, skip court dates. Many also miss court because they have no address to receive court notices, or because they lack money for transportation. Missing court can lead to arrest warrants, more charges and jail, thus driving them deeper into the criminal justice system. [Stephanie Kao / KERA]

6. Criminalizing homelessness is expensive.

Studies show that it costs more to jail those who are homeless than to provide them with shelter. On average, one day in jail costs $87, whereas a shelter bed costs $28. [International Human Rights Clinic / Yale Law School]

And that, in turn, diverts money from implementing effective solutions. In San Diego, homelessness is a serious problem. But, while officials focus on ticketing and jailing people, they neglect to address the root causes of homelessness, such as an inadequate supply of affordable housing. This negligence was on full display during the hepatitis A outbreak that killed at least 16 people and caused over 400 to get sick. [Parisa Ijadl-Maghsoodl / HuffPost]

7. Criminalizing homelessness may be unconstitutional.

Aside from being counterproductive, there’s ample evidence that criminalizing homelessness violates the Constitution.

The First Amendment

Freedom of Expression: In 2015, in Reed v. Gilbert, the Supreme Court struck down a ban on the public display of signs for religious services, ruling that laws regulating the content of signs are presumptively unconstitutional. Relying on that case, the Seventh Circuit and other federal district courts have struck down panhandling laws in Colorado, Florida, Illinois, and Massachusetts, finding that they impermissibly regulate expressive conduct. [Joe Palazzolo / Wall Street Journal]

Fundamental Right To Travel: In Florida in 1992, a Federal District Court declared Miami’s sit-sleep-lie laws a violation of the right to travel, writing that, “Preventing homeless individuals from performing activities that are ‘necessities of life,’ such as sleeping, in any public place when they have nowhere else to go, effectively penalizes migration.” [Jeff Weinberger / Miami New Times]

The Eighth Amendment

Cruel and Unusual Punishment: In 2006, the Ninth Circuit Court of Appeals struck down Los Angeles’s city ordinance prohibiting sleeping, sitting, or lying on the street at any time of the day. The court ruled that the ordinance unconstitutionally criminalized unavoidable conduct. The city had a major housing shortage and an inadequate supply of shelter beds. Homelessness, the court held, is “a chronic state that may have been acquired ‘innocently or involuntarily.” Thus punishing people for sleeping on the streets—an inevitable consequence—violated the Eighth Amendment. [Theresa Walker / OC Register]

The Fourteenth Amendment

Vagueness: Courts have struck down anti-loitering laws as unconstitutionally vague. For example, in a 1972 Supreme Court decision, the court complained that, because of its unspecific language, an ordinance in Jacksonville, Florida, placed “almost unfettered discretion in the hands of the police.” [Aarian Marshall / City Lab]

Attorneys are challenging San Diego’s encroachment laws, originally enacted to force people to remove trash bins from sidewalks. However, police are using the law to force the homeless to leave public places. Attorneys are arguing that the law is unconstitutionally vague because it provides almost no notice for what is criminal —making it potentially illegal to even place a bag on the sidewalk for just a moment. [Lisa Halverstadt / Voice of San Diego]

Equal Protection: In response to an “emergency” homeless street sweep of encampments, the ACLU of Indiana recently filed a lawsuit against the city of Indianapolis. The lawsuit alleges that the city targets homeless people while exempting others, raising due process and equal protection concerns. [Fatima Hussein & Maureen Gilmer / Indianapolis Star]

8. Prosecutors and state legislators can choose to stop criminalizing homelessness.

Prosecutors can refuse to charge for violations of laws that specifically target the homeless population, like bans on camping and panhandling. [Violeta Chapin / The Appeal] In Spokane, Washington, for example, the city and district attorneys have embraced initiatives to dismiss citations for offenses that homeless people incur when engaging in life-sustaining activities in exchange for commitments to utilize housing and social services. [Rachel Alexander / The Spokesman-Review]

Prosecutors can side with those challenging the constitutionality of laws criminalizing homelessness. In 2015, the Department of Justice filed a “statement of interest” arguing that Idaho’s laws criminalizing sleeping in public were unconstitutional. “It should be uncontroversial that punishing conduct that is a universal and unavoidable consequence of being human violates the Eighth Amendment. … If a person literally has nowhere else to go, then enforcement of the anti-camping ordinance against that person criminalizes her for being homeless.” [Harrison Berry / Boise Weekly]

Prosecutors can also champion homeless courts and diversion programs, which allow people to avoid criminal charges after taking life-skills classes or signing up for social services. In Seattle and Santa Fe, officials have implemented a Law Enforcement Assisted Diversion (LEAD) program that places people in treatment programs pre-arrest. [Carlos Andres Lopez / Seattle Times]

Prosecutors can agree to dismiss outstanding warrants for unpaid fines and quality-of-life offenses. In Los Angeles, in 2015, the city attorney agreed to do just that if people accepted social services, job training, and drug and alcohol treatment. His office put together clinics to help the homeless population participate. [Gale Holland / Los Angeles Times]

The most straightforward path to ending the criminalization of homelessness runs through state legislatures. State and local officials should refrain from passing new laws that target homeless individuals, and they should repeal existing laws that criminalize life-sustaining and necessary behaviors. [Yale Law School Allard K. Lowenstein International Human Rights Clinic / “Forced Into Breaking the Law”]

The Baltimore Police's 'Summer Surge' Scam

A former Baltimore Police officer says that a plan to flood the streets with local and federal law enforcement is likely to yield more of the same ineffective 'broken windows'-style arrests.

A Baltimore Police car patrols the Gilmor Homes one year after the death of Freddie Gray
Chip Somodevilla/Getty Images

The Baltimore Police's 'Summer Surge' Scam

A former Baltimore Police officer says that a plan to flood the streets with local and federal law enforcement is likely to yield more of the same ineffective 'broken windows'-style arrests.

On June 18, Baltimore Mayor Catherine Pugh and interim Police Commissioner Gary Tuggle announced plans for a “summer surge” by the  city’s police department and federal law enforcement partners “to disrupt and dismantle criminal activity in designated Baltimore neighborhoods during the early summer months.”

There has already been one such “surge” this year; in January, shortly after taking office (a position he held for only nearly four months because he was federally charged with tax evasion), Commissioner Darryl De Sousa announced “Operation Blitz,” in which additional officers were deployed onto city streets for 13 days in an effort to drive down crime. Within the first few days of the plan, De Sousa proclaimed Operation Blitz a success touting 55 arrests and 19 gun seizures.  But in that same time frame, there were four homicides and Baltimore police officers shot a man in the leg.

Typically, crime spikes when the weather is hot and more people are outside, so summer is  common time for such deployments, which are referred to within the department as  “all-out details” or “initiatives.” Last summer, after six homicides over just seven hours, then-Commissioner Kevin Davis—the department has had three commissioners in the last year—instituted mandatory 12-hour patrol shifts and pulled several officers out of administrative jobs in an effort to increase the number of officers on the street. Most of the additional manpower for these deployments is from detectives normally assigned to administrative or investigative units. Davis’s plan lasted for just a week, and made no discernible impact on the homicide rate. Baltimore finished 2017 with 343 murders, one of the deadliest years in the city’s history.  

I was a sworn officer of the Baltimore Police Department from June 1999 to July 2017 and during my tenure, I participated in several of these initiatives as a patrol officer, as a member of a specialized unit and as a detective. The normal routine for a shift on the initiative began by reporting for roll call where we were given instructions from command staff as to the purpose of the initiative and what sort of enforcement they wanted, like car stops or stop-and-frisks. We would be given packets with mugshots of wanted individuals or “persons of interest” to look for as we drove around or walked. There were lots of catchphrases and veiled references to making arrests for any infraction, like “We need to make our presence felt” and “You know who the bad guys are.” We were sent to “hot spots” to enact “targeted enforcement,” a sanitized way of saying we were deployed to already heavily policed, and predominantly poor and Black, neighborhoods in East and West Baltimore. Sitting in roll call, I tried to imagine a bunch of cops descending upon the largely white neighborhoods of Guilford or Roland Park to perform targeted enforcement of open container or loitering violations.

These initiatives placed a huge emphasis on stats. The primary goal was almost always gun arrests, but the reality was, arrests for anything would do. Commanders wanted arrests, and lots of them. We were instructed to look for any excuse to put Baltimore residents  in handcuffs. Most of the arrests I made or observed while working these initiatives were for minor offenses, like drinking in public, smoking marijuana, loitering, or trespassing. Some nights, we would stop everyone we saw, running their names to check for outstanding warrants. Cops love warrant arrests because, for the most part, they don’t require any paperwork.

In the summer of 2015, just a few months after the in-custody death of Freddie Gray—which later led to the department being placed under a Department of Justice consent decree to address systemic issues within the department like unconstitutional searches—I was assigned to one such initiative as an Internal Affairs detective. We targeted an area of Southwest Baltimore that had experienced an uptick in violent crime. Our detail was provided with a motorcade-style escort from headquarters to our designated deployment area, a procession of about 15 to 20 police cars, some with up to four officers each. Our commander gave us instructions over dispatch: “Hit the area hard.”

That night, I saw my fellow officers jump out of their cars and stop anyone who happened to be outside. I’m not a legal scholar, but I know enough about police work and the Constitution to understand that a random person walking down the street doesn’t expect to be suddenly surrounded by a handful of cops, and certainly doesn’t feel like they are free to leave or ignore the officers commands to stop. Over and over again, I saw cops “pocket surf,” a term we used for checking people without consent or probable cause.

Another common tactic we relied upon during these initiatives was called a “door pop,” where cops would come to a sudden stop in front of a group of people, and quickly pop open their vehicle doors. If someone ran, they were chased. If they were caught, they were searched and, at the very least, arrested for some sort of minor infraction like loitering. Earlier this year, when officers from an elite BPD squad called the Gun Trace Task Force went on trial in federal court on charges including conspiracy and racketeering, media reports highlighted “door pops” as one of several tactics used by the “rogue” unit. But I can confirm that “door pops” were and still are standard practice in the BPD.

Cars were pulled over for anything: broken tail or brake lights, dark tinted windows, rolling through stop signs, double parking. But these initiatives weren’t about writing traffic tickets or seizing weapons; ultimately, the goal was to find a “legal” reason for getting inside a Baltimore resident’s car to search for anything that would justify an arrest. One of the most common pieces of probable cause for a search was to note “the odor of marijuana.”  Read enough police reports and it would seem like every car in Baltimore reeks of weed, including those where no drugs were found.

Even back then, before I had become completely disillusioned with this heavy-handed policing, it didn’t feel like what we were doing had much to do with “fighting crime.” Instead, these initiatives seemed like apartheid policing where the citizens in certain neighborhoods, usually predominantly African American, were not allowed to move freely. Such initiatives also didn’t reduce crime. In 2015, Baltimore finished the year with 344 murders, at that time the deadliest per capita year in the city’s history.

After 18 years in law enforcement, and working at least a one of these similar initiatives each year, I don’t see any positive, lasting impact resulting from Pugh and Tuggle’s upcoming “Summer Surge.” These initiatives are about short-term non-answers for long-standing problems such as open-air drug dealing, nonfatal shootings and homicides. They are about the quick stat grab, an opportunity for the top police brass to hold a press conference to brag about arrests, a victory lap used to justify the outsize Baltimore Police Department’s budget. In a city whose citizens and police department have a contentious relationship, the militarized rhetoric of a “surge” designed to “disrupt” and “dismantle” will just trap the department in a loop of badly ineffective, biased policing.

More in Explainers

Broad Anti-Trafficking Law Faces Its First Constitutional Challenge

Human rights groups, sex worker rights activists, a digital archive and others say they are already facing censorship.

President Trump displays the Allow States and Victims to Fight Online Sex Trafficking Act after signing it into law at The White House in April.
Chris Kleponis-Pool/Getty Images

Broad Anti-Trafficking Law Faces Its First Constitutional Challenge

Human rights groups, sex worker rights activists, a digital archive and others say they are already facing censorship.

The first lawsuit against the federal law targeting sex work online was filed late Thursday in the U.S. District Court for the District of Columbia. On behalf of plaintiffs including Human Rights Watch, the Woodhull Freedom Foundation, and the Internet Archive, along with an individual sex workers’ rights activist, the complaint argues that the law, Allow States and Victims to Fight Online Sex Trafficking Act (H.R. 1865), is a violation of the First and Fifth Amendments. The plaintiffs are also asking for a preliminary injunction.

The law has resulted in online censorship that conflates the practice of sex work with health and human rights advocacy for sex workers, the complaint alleges. “This law is casting great uncertainty, whether [that advocacy is] illegal,” said David Greene, civil liberties director and senior staff attorney at the Electronic Frontier Foundation, which was among the plaintiff’s counsel.

This law, also known as SESTA/FOSTA, was signed by President Trump on April 11. It was touted by its supporters as a way to combat human trafficking. “Traffickers are using [the] internet to sell women and children,” Senator Rob Portman, an Ohio Republican, said ahead of a Senate vote in March. Groups lobbying for tougher laws against sex work, like World Without Exploitation, helmed by former Brooklyn prosecutor Lauren Hersh, and the National Center on Sexual Exploitation (formerly known as Morality in Media), also pushed for the legislation.

SESTA/FOSTA goes further than targeting human trafficking. It also holds the operators of websites criminally and civilly liable if third parties were found to have posted content “to promote or facilitate the prostitution of another person.” SESTA/FOSTA also gives state attorneys general the power to bring civil actions against the operators of these websites. But as the suit points out, SESTA/FOSTA “does not define what it means to ‘promote’ or ‘facilitate’ prostitution, nor does it specify what constitutes ‘the prostitution of another person,’ even though ‘prostitution’ is not defined in federal law.”

The broad language, the suit continues, could also extend to “persons who engage in broad categories of protected speech that makes sex work safer and easier, including speech advocating for the decriminalization of sex work, harm reduction, including speech identifying bad clients and other risks to sex workers, and speech seeking to reach sex workers to inform them of their legal rights, medical resources, or other informational material.”

One of the suit’s plaintiffs, the Woodhull Freedom Foundation, a national human rights group whose mission is to “protect sexual freedom as a fundamental human right,” says it has had to censor its work supporting sex workers, which it does in part through an annual conference where sex workers lead workshops on health and rights. “Accordingly, in April, 2018, Woodhull initially responded by ceasing all online promotion of the sex work track workshops for the Summit,” the lawsuit states. “Woodhull has a well-founded fear that its efforts to promote information about sex workers on the Internet could be construed by an ambitious prosecutor or enterprising plaintiff’s lawyer as promoting or facilitating prostitution in violation of FOSTA.”

Another plaintiff, the international group Human Rights Watch (HRW), says FOSTA could impede its efforts to advocate the rights of sex workers, including its support for the decriminalization of sex work. “HRW relies heavily on individuals spreading its reporting and advocacy through social media,” Dinah PoKempner, HRW general counsel, said in a statement issued by EFF. “We are worried that social media platforms and websites may block the sharing of this information out of concern it could be seen as demonstrating a ‘reckless disregard’ of sex trafficking activities under FOSTA. This law is the wrong approach to the scourge of sex trafficking.”

Because of the law’s vagueness, other plaintiffs alleging harm include a digital library that would now need to scrutinize the millions of pages it compiles for any suggestion of sex trafficking and  a massage therapist whose business has been banned from Craigslist.

For years, EFF has lobbied against attempts to limit what the group calls “the most important law protecting internet free speech”: Section 230 of the Communications Decency Act (CDA). Pro-SESTA/FOSTA groups said Section 230 made it impossible to hold websites like Backpage accountable if its users were trafficked. This was not the case, as was proved when the Department of Justice seized and shut down Backpage days before SESTA/FOSTA went into effect.

EFF sees FOSTA as “the most broadly based and comprehensive legislative censorship of Internet speech since Congress passed the anti-indecency provisions of the CDA in 1996,” the complaint states. This also isn’t the first time such online speech restrictions targeting information about sexuality, rights, and health have been challenged. After the CDA was passed in 1996, many of its original provisions, including one that prohibited the transmission of material “intended for producing abortion,” were struck down in court.

The broadness of the law led to a near-immediate chilling effect. Even before President Trump signed SESTA/FOSTA, some websites began removing sex workers’ content, along with any content they believed could be construed as a violation of the law. Some ad websites, like Cityvibe, went offline completely. Craigslist replaced its Personals section with a notice stating, “US Congress just passed HR 1865, ‘FOSTA,’ seeking to subject websites to criminal and civil liability when third parties (users) misuse online personals unlawfully. Any tool or service can be misused. We can’t take such risk without jeopardizing all our other services, so we are regretfully taking craigslist personals offline.”

With these site closures and takedowns, groups and lobbyists who backed SESTA/FOSTA declared victory. At the same time, sex workers reported that as a result of the law, they lost access to “bad date” lists tracking abusive and violent clients, along with the ad sites that  allowed them to find clients independent of third parties. All this is why sex workers’ rights groups opposed SESTA/FOSTA, along with some anti-trafficking groups and women’s and LGBTQ rights groups.

Greene of EFF said he is concerned that the confusion the law has created is no accident. “The law is vague. It’s ambiguous. I think that’s completely purposeful by Congress,” he told The Appeal. “You don’t triple up on words like facilitate, support, assist, promote—unless you want to make sure you are going to capture all situations. But you can see how it’s at best uncertain whether advocacy for decriminalization [is] facilitating prostitution, because the law typically defines facilitation as just to make something easier. Are you making prostitution easier when you are offering resources to sex workers on how to do so safely?”

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