To Help Solve Homelessness, Recognize Necessity as a Right

This article is part of The Rooftop, a blog and multimedia series from New America’s Future of Land and Housing program. Featuring insights from experts across diverse fields, the series is a home for bold ideas to improve housing in the United States and globally.

The necessity defense provides an excuse for an otherwise illegal action if that action was necessary to prevent greater harm. In property law, the archetypical case recognizing the necessity defense as a valid excuse for invading the property of another involves a boat caught in a storm out at sea that is forced to use someone’s private dock. As I argue in an upcoming law review article, in light of the human need for food and shelter, a necessity defense, if taken seriously, could place immediate demands upon both the state and private property owners.

Those struggling with the cost of housing will go to almost unimaginable lengths to keep a roof over their head or to secure basic shelter. The homeless and precariously housed families whose stories are told in New America Fellow Brian Goldstone’s recently published book, There is No Place for Us: Working and Homeless in America, regularly find themselves backed into a corner and facing the very real prospect of losing their home. The families Goldstone met in Atlanta suffer ongoing hardships in order to find and keep shelter, whether that means living in a utility closet or couch surfing from friend to friend as they overstay their welcome everywhere they find a place to crash. Goldstone’s retelling shows families facing impossible choices: not paying the electric bill so they can pay rent, staying in a dingy hotel for months on end, or skipping work to try to find a landlord who will accept a housing voucher.

But shelter is such a necessity that people will also break the law to secure it. UC Irvine Professor Kaaryn Gustafson’s interviews of welfare recipients include multiple accounts of how women illegally hid income from authorities and often turned to prostitution as a way of surviving. Gustafson’s 2011 book, Cheating Welfare: Public Assistance and the Criminalization of Poverty, argues that since welfare reform, benefits have become so low that recipients have little choice but to break the law in order to provide for their basic needs, including shelter. It is an observation common to most in-depth reporting on the most vulnerable. Matthew Desmond’s 2017 Pulitzer Prize–winning book Evicted: Poverty and Profit in the American City emphasizes the ways landlords exploited the desperation of their tenants, while those on the other side of the relationship, the tenants, also tolerated illegal leases for extended periods of time and made money off the books. In fact, one of the families Goldstone portrayed repeatedly sold their food stamps for 50 cents on the dollar in order to pay for rent.

Legal cases invoking the necessity defense, especially the boating case, can feel far removed from the needs of a mother facing the risk that she will not be able to provide her kids enough food or a roof over their heads. The boat captain is seen as struggling with forces beyond anyone’s control; the mother is blamed for putting her family in that situation. If the boat captain does tie onto a private dock, it is treated as a one-off problem, but the needs of parents in poverty seem timeless and limitless, at least next to the miserly sources of public support that are available.

Seen from this perspective, necessity would seem to be understood narrowly as a valid defense that only the privileged can draw upon. But necessity is not about one’s socioeconomic class nor about the duration of the need; necessity is borne out of the recognition that food and shelter are basic human needs regardless of what led someone to lack them.

“Necessity is not about one’s socioeconomic class nor about the duration of the need; it’s borne out of the recognition that food and shelter are basic human needs regardless of what led someone to lack them.”

Let’s take a look at how this might play out in practice. At a more basic level, given the increasing number of anti-homeless ordinances such as those sanctioned last year by the Supreme Court in City of Grants Pass v. Johnson, unhoused individuals and families routinely break the law whenever they sleep or engage in necessary human activities that are legally proscribed.

Read narrowly, the Grants Pass case involved the question of whether the Constitution’s prohibition on “cruel and unusual punishment” applied to an anti-homeless ordinance that advocates claimed targeted status. Advocates for the homeless argued that since someone without a house still needs to sleep by virtue of their human condition, ordinances such as those passed by the City of Grants Pass targeted not the action associated with camping but the very status of the homeless as people. Yet according to the majority, the limitation on “cruel and unusual punishment” should not be read so broadly and did not apply to public camping ordinances. In deciding that cities can criminalize the unhoused, Justice Neil Gorsuch, writing for the Court, argued that localities needed the “full panoply of tools in the policy toolbox.”

Grants Pass was a huge loss for homeless people and for those who believe the Constitution can and should do more to protect the most vulnerable. But from a legal perspective, the conservative justices seemed to offer an escape valve of sorts for the harshness of the ruling in the oral argument and decision itself—in the form of the necessity defense. During oral argument, Justice Brett Kavanaugh expressed the hope that necessity would “take care of most of the concerns” raised by the reach of the municipal anti-homeless ordinance, and Justice Gorsuch suggested that necessity could “get rid of this awful status / conduct distinction that we have.” The majority opinion continued in this vein, noting the possibility that the necessity defense “extends to charges for illegal camping when it comes to those with nowhere else to go.”

It is important not to overstate the possibilities offered by the necessity defense: Being allowed to camp because one does not have access to shelter would be better than facing a criminal charge for such camping that can only be challenged after the fact. A right to sleep is better than having to pursue a necessity-based defense. But it is significant that the court seemed to crack open the door to necessity as a limit on the reach of anti-homeless ordinances.

It should be uncomfortable that a nation as wealthy as the United States does not provide, as a matter of right, enough support for poor families to have secure access to adequate food and decent housing. If such minimal support for the economically vulnerable is politically impossible, it is time to recognize that the most needy have little choice but to break the law. In ways big and small, they have to cheat the system or permit others (including their landlords) to break the law.

Necessity is unlikely to be the sort of claim that inspires the federal government to suddenly quadruple the number of housing vouchers to meet actual need, or to take a more active role in ensuring an adequate supply of housing is built nationwide. But recognizing that shelter is basic to the human condition, without which people would be legally justified in the lengths they go through to secure it, could prompt a reframing of the government’s responsibility in making sure that affordable housing is accessible to all.

Editor’s note: The views expressed in the articles on The Rooftop are those of the authors alone and do not necessarily reflect the opinions or policy positions of New America.