University of Pennsylvania Journal of Law and Social Change


Carl Wu

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Across the United States, various legal mechanisms have subjected unhoused people to cruel practices that seek to remove them from public view. These practices have included laws that criminalize sleeping in public. Following a decades-long series of Supreme Court decisions, the Ninth Circuit recently struck down these “anti-homeless” laws under the Eighth Amendment’s ban on Cruel and Unusual Punishment and held that one’s status and unavoidable conduct resulting from that status could not be criminalized. Since 2022, a second wave of removal has emerged. California and New York City have both enacted initiatives, shrouded under the guise of a “compassionate” and “transformative” framework of moral obligation, that continue to target and remove unhoused people, this time by proxy of mental illness. This article argues that this trend, which attempts to circumvent the unconstitutional criminalization of unhoused people, is concerning and misguided. Although touted as a mechanism for moving away from police interaction, conservatorship, and involuntary treatment, the practical effect of both initiatives is to create a new quasi-criminal framework that will likely increase the use of these measures. Along with several other enforcement problems they share, both initiatives will further entrench vulnerable individuals within punitive systems, the precise opposite of what California and New York City purportedly promise to deliver.