New York City could soon pass a “homeless bill of rights” with a “right to sleep outside” – something that no other major US city has done.
If signed by Mayor Eric Adams, the proposal, which cleared New York’s city council unanimously last month, would add another plank to the city’s unique protections for unhoused residents. Since 1979, New York City has been one of the only places in the country with a “right to shelter”, which requires the government to provide a bed under a roof to anyone who needs it.
New York City’s public advocate, Jumaane Williams, who introduced the bill of rights, called it a “base standard, a moral and legal obligation that the city must meet for vulnerable unhoused New Yorkers”. (The public advocate is an elected citywide watchdog who can introduce bills but can’t vote.) In addition to naming the right to shelter and the right to sleep outside, the proposed bill of rights includes the right to an interpreter and a right to be placed in a shelter consistent with one’s gender identity.
But while the bill could be a promising step toward decriminalizing homelessness, advocates say it’s hampered by confusing legal language. It also leaves out the one right that would actually solve the problem: the right to housing.
“It’s a sad state of affairs when we are basically asking, begging authorities to allow us to sleep in the elements,” says Deborah Padgett, a leading homelessness scholar at New York University’s Silver School of Social Work. “If you think about it, why should that be a right? Housing should be the right.”
‘If folks feel unsafe in a shelter, they just won’t sleep there’
New York City’s unhoused population reached an estimated 78,000 people this month, according to city data, in part due to an influx of asylum seekers and immigrants being sent by states along the US-Mexico border. The city’s traditional shelter system has been pushed to its limits, and officials have tried adding capacity by repurposing everything from hotels to school gyms. But the chaos has made it even harder for existing unhoused residents to access shelters, which already carry a reputation for being overcrowded and dangerous.
Every night, a few thousand unhoused New Yorkers end up sleeping on the streets or subways instead. They shouldn’t be stopped from doing so, says Krys Cerisier, a homelessness organizer at the local non-profit Vocal-NY. “These beds are not always humane and safe, and if folks feel unsafe in a shelter, they just won’t sleep there.”
Shelters are also restrictive: outside food is prohibited, and residents lose their beds if they miss a curfew. Many people “would simply rather be in public spaces, because at least they would have autonomy over how they can move, where they can go, what time they do it, and if they want to find food”, says Cerisier. “For a lot of folks, that choice is way more valuable than the bed.”
But like in the rest of the country, existing while unsheltered is essentially criminalized in New York. While New York doesn’t explicitly outlaw sleeping outside, most city parks close overnight, and there are regulations against obstructing sidewalks and sleeping across multiple subway seats. Adams, a former cop, has led highly publicized sweeps of encampments and subways, and he has empowered the NYPD to hospitalize unhoused people against their will, if they appear to be mentally ill. “Those are just ways of incarcerating folks who sleep outside and making sleeping outside illegal,” says Cerisier.
Other US cities, like Seattle, San Francisco and Los Angeles, have gone a step further and passed “sit-lie” ordinances – which prohibit sitting or lying on sidewalks – and “anti-camping” laws, which criminalize setting up tents in public spaces. “Every municipality or county I know of has sweeps,” says Padgett, the NYU researcher. “They supposedly give people a warning and enough time to move. And then they come in and take everything else, including whole tents, and put them in a trash compacting truck.”
Punishing people for living outside only further entrenches them into homelessness, says Padgett. “It starts this whole cycle of having a criminal record for doing the things that we all do indoors, and that makes it even harder to get a rental voucher and a landlord acceptance.”
Would a ‘right to sleep outside’ really help?
In 2019, the ninth circuit US court of appeals ruled that local authorities may not enforce laws against sitting or sleeping outside if there aren’t available shelters – to do so, it said, would violate the constitution’s prohibition on cruel and unusual punishment. “As long as there is no option of sleeping indoors,” a judge on the panel wrote, “the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter.”
Under the ruling, cities may still enforce anti-homelessness laws as long as they offer people a place to sleep that night. In practice, there’s no guarantee those alternative shelters will actually meet people’s needs, says Eric Tars, the legal director of the National Homelessness Law Center. “At some shelters, you need to line up every day, and there’s not a promise of a bed beyond the night that you’re sleeping in it. So if [people] are going to get kicked back out on the street on the next night without their tent and sleeping bag, then we’re leaving them in a worse state.”
That’s why passing a right to sleep outside, while far from being an end goal, could reduce harm for unhoused people “who would be able to sleep and shelter themselves without being threatened with fines or harassment”, the lawyer says.
But New York’s proposed homeless bill of rights comes with fine print that raises doubts over whether it truly creates new protections.
Buried near the end, a provision states that the named rights do not include a “private cause of action” – in other words, no one can sue if these rights are violated. It also states that the homeless bill of rights should not be “construed … to confer new rights”, language that Tars calls “extremely contradictory”. “It makes me concerned about how committed [lawmakers] are to even the harm-reducing potential for this sort of law,” he says.
Williams’ office says the “rights” are “present in agency rules and other city guidances”, and that the bill “aggregates” them into a “single declaration” to “empower homeless individuals to self-advocate if these rights are violated”. Specifically, it ensures that the department of homeless services “must make unhoused people aware that it is not explicitly prohibited to sleep outside”.
City data shows that the NYPD cleared more than 3,000 homeless encampments last year, including some that were cleared multiple times – one encampment was cleared as many as 97 times over six months. But only 5% of the people living in the cleared encampments agreed to enter the shelter system.
Still, Adams has defended the sweeps. “Sitting in those tents, in those encampments, seeing human waste, stale food, dirty clothing, people who are dealing with mental health crises, and then we have the audacity to say that they should live that way? I’m just not going to do that,” he said at a press conference last year.
Housing first
Even if unsheltered homelessness were decriminalized, it wouldn’t be enough, says Tars. “That’s why we say ‘housing, not handcuffs’ and not just ‘not handcuffs’. Because you need a plan for the next step.”
The lawyer worries that a “right to sleep outside” in New York that isn’t actually protected could end up being the “worst of both worlds” for people on the streets: “You don’t have any new rights, and you get the backlash anyway.”
In places like Portland, which suspended its anti-camping laws after the ninth circuit ruling, some unhoused people began camping in more visible public places and ended up generating even louder calls for the encampments to be criminalized, he says.
And the law also wouldn’t deal with the more pressing question: “How do we get people into housing, so that they aren’t on the streets in the first place?”
Padgett is a prominent champion of a paradigm called “housing first”, which argues that the only real way to solve homelessness is to stop forcing homeless people to jump through hoops, and instead offer them immediate access to permanent and affordable housing. Only then will people have the stability to address the other challenges in their lives.
While the housing-first movement originated with New York City activists, it hasn’t truly been implemented here. For that, we have to look to parts of Canada, western Europe, and countries like Chile, says Padgett. “It’s proven by evidence: it’s just the way to end homelessness. No other approach works.”
Advocates often talk about a “housing ladder” – the path out of homelessness into stable living – but in American cities, the rungs are shaky and spaced far apart.
In New York, to apply for a rental apartment assistance voucher, unhoused people must prove they are working and have lived in a shelter for at least 90 days, under a rule put in place by the former mayor Rudy Giuliani that Adams has refused to scrap. Likewise, to apply for supportive housing – a type of group living with private rooms – people must complete multiple interviews, mental health evaluations and reams of paperwork. Even if they would qualify, people face long delays in getting approved by the city’s understaffed bureaucracies, not to mention discrimination from landlords.
Structural change has proven elusive. While shelters are better than nothing, they’re also very expensive – it costs the city roughly $4,000 a month to provide a shelter bed for a single adult, money that Padgett thinks could be far better spent on housing. But the city’s shelter mandate makes it difficult to divert funding, and the non-profits paid lucrative contracts to run the shelters have “very few incentives” to improve their services or shake up the status quo, she says.
The homeless bill of rights won’t do much to change that. But it stands a good chance of becoming law: even if Adams rejects it, the city council has enough votes to override the veto. Padgett hopes that’s a sign that lawmakers may have enough political unity to start talking about housing first. “I think the sympathy is there. It’s just a matter of changing our priorities, which is going to be hard when billions are spent on the current system as it is. They’ve really dug themselves into this situation where it’s very hard to get out.”
