Do the Homeless Deserve Protection as a Minority Class? In a Recenlty Published Piece, 2009 PJP Fellow Margo Pierce Says Yes

Margo Pierce, Jennings Fellow 2009, recently published a piece addressing an interesting question:, do the homeless deserve constitutional protection as a special class? That is, should we consider the homeless in the same manner that we consider other minority populations, such as African-Americans or homosexuals? Pierce’s work has appeared in several “street papers” – newspapers created to be sold by homeless people, providing them with a source of income – and has been syndicated by the International Network of Street Papers, which connects over 100 street papers worldwide. Pierce relied upon PJP faculty member Sherrilyn Ifill as a major sourc for her article, which is reproduced below. We invite your reactions.

By Margo Pierce

If 27 people had been killed in the United States in one year for being African-American or for being Jewish or for being developmentally disabled, there would be a national uproar. In 2008, 27 people were killed in the United States “for being homeless,” according to the National Coalition for the Homeless. Where is the uproar?

Homeless people all over North America are being set on fire, beaten, stabbed, shot, strangled, brutalized by police, harassed and raped. Many of these crimes go unreported, and the ones that do come to light might not necessarily be recorded as hate crimes. That means statistics for tracking the violence in order to find ways to address it are inadequate. Understanding this phenomenon begins with the source of the assaults and apathy surrounding them.

“People are just being targeted because they are homeless. It’s a safe crime, it’s almost like vandalizing a street sign,” says John Joyce, co-executive director of the Rhode Island Homeless Advocacy Project.“The victim doesn’t come and tell the police about it. They’re ashamed of where they’re at in their life right now. “I can’t understand why, but it’s accepted that it’s OK to assault homeless individuals. It’s just bigotry at its best. People are being targeted because they’re homeless. You’re carrying your life on your back, in your backpack; and people see that and for some odd reason people want to assault people who are more vulnerable.”

During testimony before the Rhode Island Legislature on a bill to require tracking crimes against the homeless and police training on homelessness, Joyce played the Bum Hunter video to show how attacking homeless people has become a form of entertainment. The bill passed the state house and senate and is expected to be signed into law. “The victims don’t really want to come forward because the way the police departments think and the community thinks, it’s ‘No one’s going to believe me anyway if I do get assaulted.’ If the homeless community here in Rhode Island knows that the police departments will listen to their complaints, they’ll come forward,” Joyce says.

The complexities of social attitudes influence all facets of government in the execution of their role as protector of the common good. This is reflected in an opening statement in
Homelessness, Victimization and Crime: Knowledge and Actionable Recommendations, presented in 2008 by the Institute for the Prevention of Crime at the University of Ottawa.
“In 1998 the mayors of some of the largest cities in Canada declared homelessness a national disaster,” the report says. “Since then, studies conducted in a number of Canadian cities provide evidence that the number of homeless people on the streets is increasing and consequently that the demands on shelters and other services can be expected to rise. … Those without adequate shelter are more likely than the housed to be victims of violence and, for women, victims of sexual assault.”

What the report can’t provide is uniform, consistent data on the number of crimes committed against homeless people across Canada. Nor can the U.S. government provide that same data. Beyond victims’ reluctance to report, another problem is the apparent indifference of law enforcement to collecting the information. The 2007 Hate Crimes Statistics, the most recent annual report compiled by the FBI Uniform Crime Reporting Program, illustrates this point.
More than 13,000 law-enforcement agencies provided data about bias-motivated crime, with 2,025 agencies (15.3 percent) reporting 7,624 incidents. “The remaining 84.7 percent of the participating agencies reported that no hate crimes occurred in their jurisdictions,” the report says.

Some states, such as Mississippi – with a deep-rooted past in racial violence – reported zero incidents of hate crimes in the entire state. Delving into what makes a hate crime could begin to explain why jurisdictions don’t want to report these crimes.

Attacked for who they are
A hate crime is an illegal act motivated by hatred toward individuals or property because of an identification as or affiliation with a particular race, color, national origin, ethnicity, religious tradition, sexual orientation or physical or mental disability. (Canadian law also includes language as a prejudicial motivation). Crimes can be against people, including harassment, terroristic threats or assault; or against property, such as trespass, arson or vandalism to the building, the grounds surrounding a structure or personal property inside.

The definition of a crime, or illegal activity, motivated by hate seems obvious. But the laws and prosecution of such crimes are the subject of much debate among political leaders, victims’ advocates and activists. The end result – the legal definitions – can be charges carrying stiff or light penalties, depending on where the crimes are committed and the discretion of prosecutors and judges. The Criminal Code of Canada: Hate Provisions requires specific proof of the criminal act and the intention to commit the crime. In the United States, racially motivated hate crimes were defined as early as 1964 in the Civil Rights Act but it wasn’t until 2009 that disabilities and sexual orientation were added to this legislation, when President Obama signed the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act.

The thing that differentiates a hate crime from others is that it is “based on a characteristic or condition of the victim” by a perpetrator who “seeks to not only commit the crime against the particular victims but to send a message about that victim to the larger community,” according to Sherrilyn Ifill, professor of law at the University of Maryland and a faculty member of the Peter Jennings Project for Journalists and the Constitution. Those defining elements are determined by history, she says.

“We cannot ignore the reality that hate-crime legislation and our view about the particular condemnation that we have for hate crimes comes out of our very particular history. We didn’t just sit down one day and decide if there should be legislation that covers certain kinds of crimes against certain kinds of victims,” she says. “The genesis of the crimes comes out of a history of violence against particular members of our community, particularly racially based hate crimes. It comes out of a very particular time in the history of U.S. violence, in particular, against African Americans, whether it is individualized violence, whether it is mob violence in the form of lynching, whether it is Klan violence – that’s the history it comes out of. So that’s the genesis of it.
“It doesn’t mean that our civil rights laws don’t also cover gender discrimination in the work place, for example. We come to expand those laws out of that history, to add other aspects, to add other pieces of it that strike us in the same way, that go to the core of who, at least, we aspire to be as a society and as a country.”

How we protect, or fail to protect, vulnerable populations in our communities is a demarcation of our progress in achieving that image. “This is really, in many ways for me, a very critical issue of democracy and freedom – that is, your ability to walk on the street and not be physically attacked for who you are,” Ifill says. “When we want to talk about freedom and we want to talk about democracy, we tend to think about voting. I think many people take for granted the assumption that you can walk on the street unmolested so long as you’re not committing a crime. There can be no other more corrosive activity to a society that purports to be free and democratic than allowing citizens to be attacked on the street for who they are.”

A push to include homelessness as a classification in U.S. hate-crime legislation is getting a nod from states passing their own hate-crimes legislation. Ranging from mandating reporting and police training (Rhode Island) to tougher sentencing for individuals convicted of hate crime (Washington state), these laws are codifying state concern about homeless people.
The combination of the recent rise in homelessness as a result of the economic downturn and a rise in the reported cases of violent deaths of homeless people has resulted in greater awareness about the risks to people living outdoors, also known as “rough sleepers.”

“The risk of victimization is higher among homeless persons who live on the street as opposed to in shelters … 78 percent of rough sleepers had been victims of crime during their most recent period of sleeping on the street; however, only 21 percent of these incidents were reported to police,” says the report by the University of Ottawa.

Over the past decade there has been a dramatic increase in the number of violent acts committed against people experiencing homelessness, but coming up with hard data is difficult when there is no standard for reporting such crime and when there is no mandatory reporting, according to the National Coalition for the Homeless. The coalition compiles its own statistics based on FBI crime data, verifying police and media reports and information provided by advocates and support groups. Even though the data is incomplete, it reveals an upward trend that many say justifies the need for more data collection. Canadian law enforcement does not officially compile data on hate crimes against the homeless, either. National newspapers such as the New York Times and USA Today and wire services such as the Associated Press have recently reported on hate crimes against the homeless in Cincinnati, Ohio.
‘Just a bum’
John Johnson needed 18 stitches in his head and his girlfriend was in fear for her life after an April 10 attack at a camp in Cincinnati where they lived. Johnson, 52, says he was sleeping under a highway overpass at about 3 a.m. when four men attacked him.“I was awakened by four young men telling me to exit the property,” he says. “As I was complying with them, they started beating me with pipes and bats upside the head and up and down the left side of my body.”Three of the four attackers have been captured. Charged with felonious assault are Michael Hesson, 24; U.S. Army Private Riley Feller, 24, stationed at Fort Knox, Ky.; and Spec. Travis Condor, 25, stationed at Fort Bragg, N.C. A fourth suspect, also stationed at Fort Bragg, has not yet been caught.

Johnson was attacked a few weeks after the city of Cincinnati trimmed trees obscuring a small homeless camp near Interstate 75. As a result, the handful of people living there were exposed to almost constant public view during daylight hours. What wasn’t well known was that people at the camp didn’t sleep in the shack that was visible to traffic; they slept under a nearby highway overpass. The attackers allegedly beat Johnson and chased him up a hill, calling him a “bum” and saying, “We don’t want you here” and “Get a job.” The assailants threatened a woman staying with Johnson but didn’t harm her. “This was not some guys out half-drunk, having a good time at my expense,” Johnson says. “These guys were cold and calculated. It was planned.”

The fact that the four attackers knew where to find Johnson indicates that the assault was pre-meditated, according to Josh Spring, executive director of the Greater Cincinnati Coalition for the Homeless (GCCH). This was the fourth violent attack on a homeless person in Cincinnati in less than a year that GCCH knew of, Spring says.
• In summer 2009 two real-estate agents who were drunk assaulted a homeless man downtown. One knocked the homeless man’s insulin bottle out of his hand. When police arrived, one of the real-estate agents said, “He’s just a bum.” Both men were convicted of misdemeanors.

• In December 2009 a homeless man reported that a group of youths sprayed his coat with charcoal lighter fluid and threw a match, setting him on fire.
• In January 2010 a new Streetvibes vendor was beaten to the point that he had to be placed in a medically induced coma.

“In Cincinnati, hate crimes against homeless people definitely seem to be on the rise,” Spring says. “The National Coalition for the Homeless has been tracking hate crimes … because they saw a turning point where they were occurring more and people were being targeted as a popular thing to do.”

Hate, Violence, and Death on Main Street USA: A Report on Hate Crimes and Violence Against People Experiencing Homelessness 2008 is the most recent report by the National Coalition for the Homeless, which describes “an overwhelming trend” in crimes against the homeless perpetrated by young men and boys. Over the past 10 years the majority of attacks against the homeless have been committed by teenage boys and youth as young as 10 years old. In 2008, 43 percent of attacks against homeless people were committed by teens aged 13-19, and 73 percent of the accused/convicted attackers were ages 25 and younger, the report says.
“Some of the accused/convicted have been quoted as saying, ‘It was just a vagrant,’ ‘It was fun,” or they did it because they ‘could,’ ” the report says.
“We really have a problem”
Neil Donovan, executive director of NCH, says “many smart people” have studied the issue of homelessness in the United States and have told him that it’s not possible to end homelessness to the point where we don’t have to worry about it anymore. The necessary public will and resources are lacking. However, he says that’s no excuse for ignoring a very real danger in our communities.

“It really is a matter of life and death,” Donovan says. “There are examples of individuals, solely because of their status as un-housed, (who) are at risk of loss of life. When that happens, that rises to a special level of attention, and it’s really our responsibility to protect the health and well being of our un-housed brothers and sisters.”

This is one of the reasons NCH is working with the Southern Poverty Law Center to lobby for national legislation to amend the Hate Crimes Prevention Act to include homelessness as a classification reported by law enforcement. A strong and vocal supporter of this effort is Brian Levin, director of the Center for the Study of Hate and Extremism at California State University and a former staffer at the Southern Poverty Law Center.

“As a criminologist, there are certain types of data that we rely upon, and homicide data is one of them; and what we’re seeing is that more homeless people (are) murdered in apparent hate crimes than all of the other traditional hate-crime victims combined in any given year. And what I mean is race, religion, sexual orientation, disability, etc.,” Levin says. “If that’s the case, then we really have a problem where the law should protect them. And we should have a federal law reflect it, because in many areas the homeless are not treated as victims – they’re treated as criminals themselves.“The fact of the matter is, is that we have clear and very disturbing issue of violence against the homeless that is done by folks who are responding to prejudice.”

The criminalization of homelessness (See “Being Homeless is Against the Law,” edition of March 1) makes activity such as sleeping in a public place or even sitting too long in one location a crime, punishing people without a permanent address with fines and jail time.
“There is a tendency to focus on crimes committed by homeless people without also examining their heightened vulnerability to victimization – rates that are higher than for the housed,” the University of Ottawa report says. The perverse reality of homelessness is that being victimized by hate crimes makes further victimization likely. Noting that homelessness “disrupts important social bonds and impairs personal networking” for successful interpersonal interaction and efforts to leave the streets, the report explains that this means many people are trapped in that environment.

“Victimization on the street is psychologically distressing and can lead to depression and low self-esteem, which in turn contributes to apathy and feelings of futility, making it more difficult to escape further abuse,” the report says. Resistance to adding the homeless to hate-crimes legislation is coming from some unlikely places. Brian Davis, executive director of the Northeast Ohio Coalition for the Homeless, says the Anti-Defamation League (ADL) opposed adding homelessness to the hate-crimes law in Texas, arguing that it would water down the law.
“In Texas, the legislation came before the General Assembly, and the Anti-Defamation League opposed it. That’s the only time I know of that they’ve publicly come out in opposition to a hate-crimes bill, and the bill died,” Davis says. “They don’t want to cheapen existing hate-crimes statutes or open the door to frivolous claims.” Davis says the ADL argued that homeless people can “de-select” themselves from being homeless – that is, opt not to be homeless.
“Their concern is that homeless people can de-select themselves from that group by getting housing,” he says. “Of all the groups that have current protected status that it would seem would not speak up would be the group that you could de-select yourself from – namely, religion.
“The other concern is that, as we all know from working with the homeless, it’s not so easy to de-select yourself from being homeless. In many cities, there are serious barriers to getting housing.”

This notion that homelessness is a mutable condition is a “red herring,” according to Levin.
“In discrimination jurisprudence, which is the antecedent to hate-crimes legislation, mutability was never a prerequisite,” he says. “Certainly race is the genesis of these kinds of protections. It’s never been regarded, nor does the 14th Amendment … say the mutability was not the be-all requirement. It’s really a red herring. “I think what we need to look at is, ‘Is there a problem, a manifestation of prejudice and discrimination due to certain socially identifiable characteristics?’ If that’s the case, then we should address it.”

The 14th Amendment to the U.S. Constitution includes the language that “all persons” are included in the clause, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law; nor deny any person within its jurisdiction the equal protection of the laws.”

In 2009 a group of six juveniles attacked a 30-year-old homeless man sleeping next to railroad tracks in Lynn, Mass. The boys, ages 11 to 14, threw bricks, stones, bottles and sticks, inflicting life-threatening injuries. Police charged the juveniles with armed assault with intent to murder, aggravated assault and battery with a deadly weapon, assault with intent to maim with a dangerous weapon and a civil-rights violation.

Robyn Frost, executive director of the Massachusetts Coalition for the Homeless, compared the vulnerability of homeless people to that of groups protected by hate-crimes legislation, such as African Americans and homosexuals.“At a time when increased numbers of individuals and families without housing is at an all time high… I think that it has escalated this issue right to the top, right next to any one of those particular populations that are now designated.”
The brutality of the attack in Lynn could be kind of tipping point, leading Massachusetts to reconsider adding homeless people to groups protected by hate-crimes laws – a move they had earlier rejected. “The biggest tipping point right now is you’ve got such high populations in Massachusetts who are extremely vulnerable because they don’t have housing, and I think this issue right now is affecting far greater numbers of people,” Frost says. “So I think the combinations of issues sadly like occurred in Lynn and the combinations of numbers are actually skyrocketing could be a good tipping point to re-file it.”

Subhead: ‘Shallow motives’
That protection can be provided through legislation and education, according to Levin.
“The same types of offenders are committing the same hate crimes against the homeless that we’ve seen with other victim groups, yet it appears, from the limited data that we have, that the homeless are among the most violently victimized of any victim group out there,” he says. “Therefore, we need not only education, but educational initiatives to protect the homeless … training for social services and law enforcement as well as for young people in schools.
“The more we can educate young people at critical times in their lives about what prejudice is and that they might actually experience it, the more they’re able to address their feelings when they feel certain prejudices. Moreover, the more that we can say that this is not socially acceptable and institutionalize that, as well as institutionalizing the message that there might very well be punishment as well, I think serves a later good. The word’s already out there that the homeless are potential victims.”

Levin says laws can serve as a deterrent because the effectiveness of a deterrent depends on the circumstances of the crime and the offender.“Since most hate crimes – the attacks against the homeless – are done mostly by people with shallow motives, the prospective of punishment actually very well can be a deterrent. … If someone’s out for a thrill and … if there’s a message that’s out there that says, ‘Guess what? You’ll be prosecuted,’ that will deter some of the offenders. It won’t deter all of them, but people with shallow motives for committing crimes and little benefit are among the most deterrable.”

The Homelessness, Victimization and Crime report from the University of Ottawa concludes with a number of “actionable recommendations.” These suggestions fall in line with what many homeless advocacy groups across the continent have been recommending:
• Housing and supports, which include “providing advocacy and advice for homeless people; invest more resources at all orders of government into strategic tools to measure and reduce homelessness in Canada.”
• “Invest in programs to help at-risk youth to stay in school and acquire life skills; improve mental-health services for those with persistent mental illness; and educate the public about homelessness.”
• “Provide training for police and other enforcement personnel on best practices for intervention with homeless people; implement comprehensive drug strategies … and repeal legislation that excludes youth with behavior problems from mainstream education.”
“This synthesis of the research literature and the recommendations are aimed at policy makers in all orders of government to assist in reducing homelessness, victimization, criminal offending and public disorder,” the report concludes.

Donovan of the NCH takes a similar position. “Homelessness shouldn’t be over-thought, over-analyzed and over-solved,” he says. “The reason that we have homelessness is because of a lack of accessible and affordable housing, jobs with a universal living wage and health care for all. The solution is the reverse of that. “Any further explanation, any further complicating factors, really are distractions and frankly avoidance of the problem. What we really need to do is … respect people by staying focused on the issue.” Helping people get off the streets makes for fewer targets, but it won’t address the essential issue, according to Ifill.
“I think people want to believe that hate crimes are a thing of the past, and understandably so,” she says. “But the reality is that they’re not, and that only by our attention and only by very vigorous law enforcement response – prosecution by prosecutors of hate crimes, reporting not only by law enforcement official but by citizens who see and know when hate crimes occur – are we going to be able to get our hands around this.”

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