This morning at 3 AM I received a frantic phone call stating, “You gotta help me man…the cops are pounding on my door….what should I do?”
If you are ever in this situation, here is what I suggest you do.

1. BE CALM.  TO THE EXTENT POSSIBLE, DO NOT ARGUE OR BE A SMART ASS WITH THE COPS.  While some cops are professional and will deal with that response by you professionally, some will not and simply arrest you on obstructing/resisting charges (or do something worse) and execute the search.

 
   2.  GETTING INTO YOUR HOUSE.
      Cops can search your home only if they have a warrant or your consent. In your absence, the police can      search your home based on the consent of your roommate or a guest if the police reasonably believe that person has the authority to consent.
  3.    DO POLICE HAVE A SEARCH WARRANT?
If law enforcement officers knock on your door, instead of opening the door, ask through the door if they have a search warrant.  A search warrant allows law enforcement officers to enter the place described in the warrant to look for and take items identified in the warrant.  If the answer is no, do not let them into your home and do not answer any questions or say anything other than “I do not want to talk to you.”  Police may say they can get a warrant based on your refusal.  That is false.  Law enforcement officers cannot get a warrant based on your refusal, nor can they punish you for refusing to give consent.
 
REMEMBER: once you give your consent for a police search, they do not need to try to get the court’s permission to do the search.
 
If the officers say that they do have a warrant, ask the officers to slip it under the door (or show it to you through a peephole, a window in your door, or a door that is open only enough to see the warrant). If you feel you must open the door, then step outside, close the door behind you and ask to see the warrant. Make sure the search warrant contains the judge’s name, your name and address, the date, place to be searched, a description of any items being searched for, and the name of the agency that is conducting the search or arrest.  A search warrant that does not have your name on it may still be valid if it gives the correct address and description of the place the officers will be searching.
 
Another type of warrant the police could have is an arrest warrant.  An arrest warrant allows law enforcement officers to take you into custody. An arrest warrant alone does not give law enforcement officers the right to search your home (but they can look in places where you might be hiding and they can take evidence that is in plain sight), and a search warrant alone does not give them the right to arrest you (but they can arrest you if they find enough evidence to justify an arrest).
 
  4.   IMPROPER WARRANTLets say the search warrant you are shown does not contain the information specified above.  What should you do?  Try and deny the cops entry and search?  NO!  Again, in today’s world that may end up with you getting arrested or worse.  Tell the officers that the warrant is not complete or not accurate, and you do not consent to the search, but you should not interfere if the officers decide to do the search even after you have told them they are mistaken.  Ask if you are allowed to watch the search; if you are allowed to, you should. Take notes, including names, badge numbers, which agency each officer is from, where they searched and what they took. If others are present, have them act as witnesses to watch carefully what is happening.
   5.   QUESTIONING YOU BECAUSE POLICE HAVE A WARRANTSimply because police have a search or arrest warrant does not mean you must answer questions from the police. Again, do not be a smart ass, but respectfully decline to answer police questions.  This is true even if the cops say it will go easier on you if you answer questions.  More than likely, at this point, no it will not go easier on you: anything you say can and will be used against you to gain a conviction.
 
Call your Attorney Paul Ksicinski 414-530-5214  as soon as possible.

Like many other Americans, judges believe. based on public statements from certain politicians, that crime is up in their community.  This judges and the public believe violent crime has spiked.  We all saw the campaign rhetoric during midterms, along with often misleading ads to justify harsh sentences or cries for bail reform.  In reality, national crime data is not reliable enough to support justify this belief.  Myths and Realities: Understanding Recent Trends in Violent Crime, https://www.brennancenter.org/our-work/research-reports/myths-and-realities-understanding-recent-trends-violent-crime?ms=gad_crime%20statistics_617000456634_8626214133_143843260761&gclid=CjwKCAiAkrWdBhBkEiwAZ9cdcF4ojY6QZ4_N1uyhQtZCjdzSBAvUfaidVyf7dPmakX2LwBj06isA2hoCXWQQAvD_BwE
 
In fact, the reality is that unduly long prison terms are counterproductive for public safety and contribute to the dynamic of diminishing returns as the prison system has expanded.  Long-Term Sentences: Time to Reconsider the Scale of Punishment, https://www.sentencingproject.org/reports/long-term-sentences-time-to-reconsider-the-scale-of-punishment/; Extreme sentencing, https://www.aclu.org/news/smart-justice/extreme-sentencing
 
The statement that crime is rising is based on data from the newly revised FBI crime statistics collection program.  FBI crime statistics collection program is based on local police departments sending crime data to the FBI.  Unfortunately many police departments do not cooperate and send this data to the FBI.  Nearly 40% of law enforcement agencies around the country did not submit any data in 2021, leaving a massive gap in information sure to be exploited by politicians.  What Can FBI Data Say About Crime in 2021? It’s Too Unreliable to Tell, https://www.themarshallproject.org/2022/06/14/what-did-fbi-data-say-about-crime-in-2021-it-s-too-unreliable-to-tell?utm_source=The+Marshall+Project+Newsletter&utm_campaign=6965cb83f2-EMAIL_CAMPAIGN_2022_12_23_04_22&utm_medium=email&utm_term=0_-6965cb83f2-%5BLIST_EMAIL_ID%5D
 
Broadly, it does not appear that policies associated with criminal justice reform were a significant contributor to recent trends in crime and violence.  Some policymakers and police leaders have been quick to blame rising crime on reforms to pretrial detention laws and practices, arguing that people released from jail under these initiatives were responsible for, or at least contributed to, the increase in violent crime. These arguments gained traction across the country over the last two years, but no evidence has emerged to support them.  Myths and Realities, Iid.

More broadly, some critics have asserted that policies adopted by progressive prosecutors and “blue-state” mayors — such as declining to prosecute certain nonviolent offenses or to seek bail in some cases — contributed to rising crime. But there is no evidence to support these claims. In fact, researchers have shown that the election of progressive prosecutors has not caused crime to increase in their cities. In one working paper, a team of social scientists analyzed crime data from 35 cities where more progressive law enforcement officials entered office, finding no change in serious crime rates relative to other jurisdictions. In some cases, so-called “progressive” policies may in fact enhance public safety. According to one recent study of Suffolk County, Massachusetts, “people who are not prosecuted for misdemeanors are much less likely to find themselves in a courtroom again within two years.” That speaks well of a policy implemented by former Suffolk County District Attorney Rachael Rollins, under which her office declined to prosecute many (but not all) nonviolent misdemeanors, like disorderly conduct and minor drug possession.  Id.
 
Moral of the story is that the public and judges should make decisions based on facts not simply beliefs.

American, not Russian, police have been “directed by local election officials to question voters before letting them deposit their ballots, the deputies guarding the drop boxes underscore the growing schism in this country over the debunked claims that the 2020 election was marred by rampant vote fraud.”   CNN (Nov.3, 2022), https://www.cnn.com/2022/11/03/politics/elections-law-enforcement-conspiracy-theories-invs/index.html
 
The ACLU, https://www.aclu.org/know-your-rights/what-do-when-encountering-law-enforcement-questioning reminds you:
Do you have to answer questions asked by law enforcement officers?
No. You have the constitutional right to remain silent. In general, you do not have to talk to law enforcement officers (or anyone else), even if you do not feel free to walk away from the officer, you are arrested, or you are in jail. You cannot be punished for refusing to answer a question. It is a good idea to talk to a lawyer before agreeing to answer questions. In general, only a judge can order you to answer questions. 
 
What if I speak to law enforcement officers anyway?Anything you say to a law enforcement officer can be used against you and others. Keep in mind that lying to a government official is a crime but remaining silent until you consult with a lawyer is not. Even if you have already answered some questions, you can refuse to answer other questions until you have a lawyer.
 
What if I am asked to meet with officers for a "counter-terrorism interview"?
You have the right to say that you do not want to be interviewed, to have an attorney present, to set the time and place for the interview, to find out the questions they will ask beforehand, and to answer only the questions you feel comfortable answering. If you are taken into custody for any reason, you have the right to remain silent. No matter what, assume that nothing you say is off the record. And remember that it is a criminal offense to knowingly lie to an officer.
As Nellie King, president of the National Association of Criminal Defense Lawyers explains:
 
The 2022 midterm elections are rapidly approaching, and the stakes are high. The right to vote is essential to democracy yet remains constantly under attack. Voter suppression efforts are on the rise, harkening back to our nation’s long history of racial discrimination.
 
This includes felony disenfranchisement laws, which prohibit individuals with a criminal conviction from voting. These laws, which bar nearly 4.6 million Americans from voting, sprouted from the roots of post-Reconstruction era attempts to strip Black communities of political power.
 
Also on the rise: criminal prosecutions targeting people for:

• voting or trying to vote;
• assisting voters (e.g., handing out water to voters and other line warming activities); or
• seeking to register voters.

These prosecutions rely on arcane provisions of voting law and on the proliferation of recent laws creating election-related crimes or escalating the investigation and prosecution of individuals who have earnestly sought to restore their voting rights or believed their voting rights had previously been restored.
 
We’ve already seen these prosecutions happening in states such as Arizona, Florida, Georgia, Texas, and Wisconsin. States across the country, most recently Virginia and Ohio, are creating “election integrity units” to increase the investigation and prosecution of election-related conduct, despite broad recognition and evidence that voter fraud is too rare to influence national elections. Nonetheless, these efforts are meant to intimidate voters and potential voters. The result is a dampening of voter participation in communities most impacted by the criminal legal system, particularly communities of color.

 

In the story The Pedestrian, Leonard Mead, is a citizen of a television-centered world in 2053.  In the city, sidewalks have fallen into decay. Mead enjoys walking through the city at night, something which no one else does. "In ten years of walking by night or day, for thousands of miles, he had never met another person walking, not one in all that time." On one of his usual walks, he encounters a police car.  Mead tells the car that he is a writer, but the police do not understand, since no one buys books or magazines in the television-dominated society.  The police cannot understand why Mead would be out walking for no reason.  The police decide to take him to the Psychiatric Center for Research on Regressive Tendencies. As the police car passes through his neighborhood, Mead says, "That's my house.", and points to a house warm and bright with all its lights on unlike all other houses. There is no reply.  End of story
Can you believe being picked up by police and being taken to a mental hospital because you were on a nighttime walk?

There are a bunch of Wisconsin laws and/or ordinances which restrict basic human activities of public activities, such as loitering, which is defined as “wandering or strolling around from place to place without any lawful purpose.” The laws grants the police the power to approach anyone on the street who they believed was violating the law and ask what they are doing.  Anyone see a problem with that?  Do the police have the right to define if a citizen is engaged in a lawful purpose? 

As Bill Nye says, before you answer consider this:

America’s constitutional tradition, which protects the rights of people to freedom of movement and association. These guarantees always have included the right to freely use the public ways, parks and other forums of our cities for the lawful purposes of engaging in family activities, and communicating with others about matters both personally important and of public concern. Roberts v. United States Jaycees, 468 U.S. 609 (1984); Shuttlesworth v. City of Birmingham, 382 U.S. 87 (1965); Papachristou v. City of Jacksonville, 405 U.S. 156 (1972).  Incidentally, given the times we live in today this freedom of movement includes the right to move across national lines.  The first formal recognition of a right to foreign travel at common law was ch. 42 of the Magna Carta. The power of the King to prevent departures through the writ of Ne Exeat Regno was at one time a potent weapon of the monarchy, but the writ fell into disuse, For the common law background see Note, Passports and Freedom of Travel: The Conflict of a Right and a Privilege, 41 Geo. L.J. 63, 64-70 (1952). In America, Ne Exeat Regno survived as an equitable writ against absconding debtors. Parker, The Right to Go Abroad: To Have and to Hold a Passport, 40 Va. L. Rev. 853, 868 (1954).  See also, Boudin, The Constitutional Right to Travel, 56 Colum. L. Rev. 47 (1956).

Court decisions have condemned the inherent vagueness of loitering laws as was mentioned above. Thornhill v. Alabama, 310 U.S. 88, 100 (1940); Shuttlesworth, 382 U.S. at 90-91; Palmer v. City of Euclid, 402 U.S. 544, 545 (1971); Papachristou, 405 U.S. at 162-71. The ordinance's vague prohibition on behavior without an apparent purpose fails to provide any standard by which people can measure their conduct. Papachristou, 405 U.S. at 165; Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971). Similarly, the law provides no guidance to police officers. Kolender v. Lawson, 461 U.S. 352, 360 (1983).  “This ordinance is void for vagueness, both in the sense that it ‘fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute and because it encourages arbitrary and erratic arrests and convictions.“  Papachristou, 405 U.S. at 162.  Such laws are the “garbage pail of the criminal law” and suffer from “procedural laxity which permits `conviction' for almost any kind of conduct and the existence of the House of Correction as an easy and convenient dumping-ground for problems that appear to have no other immediate solution.”  Foote, Vagrancy-Type Law and Its Administration, 104 U. Pa. L. Rev. 603, 631 (1956).  The law is subjectively enforced to permit a law-abiding citizen to comport “to the lifestyle deemed appropriate by the [ ] police and the courts.”  Papachristou, 405 U.S. at 170.
​
In Papachristou Justice William Douglas, writing on behalf of the court, ultimately referenced a right that today is not readily known to most Americans: the right to free movement: “[t]he difficulty is that these activities are historically part of the amenities of life as we have known them.   These amenities have dignified the right of dissent and have honored the right to be nonconformists and the right to defy submissiveness. They have encouraged lives of high spirits rather than hushed, suffocating silence. They are embedded in Walt Whitman's writings, especially in his "Song of the Open Road." They are reflected, too, in the spirit of Vachel Lindsay's "I Want to Go Wandering," and by Henry D. Thoreau.” Id. at 164.  Police, therefore, should not be permitted to use mere suspicion of criminal activity to interrupt the daily life of people.  Laws which interfere with an individual’s right to stand or walk on public sidewalks, the “right to freedom of movement” cannot be left to “the whim of any police officer.”  Shuttlesworth, 382 U.S. at 90. 
 

The Preamble to the U.S. Constitution is majestic and powerful:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

In the stroke of a few words, the Constitution explains that our “perfect Union” which allows for “Justice” and the “Blessings of Liberty” flow not from our government but from “We the people of the United States.” 

This means we the people of the United States have rights not dependent upon the government.  Rather the power of the government depends on the people.  This was made even more clear in the Ninth Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

“The Amendment is almost entirely the work of James Madison. It was introduced in Congress by him and passed the House and Senate with little or no debate and virtually no change in language. It was proffered to quiet expressed fears that a bill of specifically enumerated rights3 could not be sufficiently broad to cover all essential rights and that the specific mention of certain rights would be interpreted as a denial that others were protected.”  Griswold v. State of Connecticut, 381 U.S. 479, 488-89 (1965)

The Griswold majority decision rested on Fourth and Fifth Amendment grounds, but Justice Goldberg, the Chief Justice and Justice Brennan wrote a concurring opinion stating based squarely on Ninth Amendment principles:
the language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments.  Id. at 488.

So we the people have certain fundamental rights which the government is not dependent upon the grant of the government.  Moreover, the government cannot infringe upon those rights.  In the words of the Tenth Amendment, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
​
In other words, the government has no power to tell people what to do except in areas specifically granted by we the people in the Constitution.  It is “self-evident that all men were endowed by their Creator with liberty as one of the cardinal unalienable rights. It is that basic freedom which the Due Process Clause protects, rather than the particular rights or privileges conferred by specific laws or regulations.”  Meachum v. Fano, 427 U.S. 215, 220 (1976), Justices Stevens, Brennan and Marshall, dissenting

Black people are seven times more likely to be wrongfully convicted of a serious offense, including murder, than white people, according to a report released Tuesday by the National Registry of Exonerations.

​In addition, Black people fall victim to police misconduct at a greater rate and experience longer prison times before exoneration, the report found.

https://www.law.umich.edu/.../Race%20Report%20Preview.pdf

This July, the Wisconsin Supreme Court held that recordings against the defendant was constitutional because the defendant’s cellmate had not acted as a government agent in making the recordings.  State v. Arrington, 2022 WI 53 (July 1, 2022), https://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=540596  If the facts of this case accurately reflected that holding, I would have no complaint.  Unfortunately, the court choose to omit a glaring fact in its decision.
 
The prosecution’s critical evidence to refute the defendant’s self defense claim to the homicide charge several recordings made by Miller, the defendant’s jail cellmate.  Miller testified that Arrington hold him that when he saw the first person, all he could think about was the stabbing and “just got to shooting.” Miller also testified that Arrington said that one of his bullets hit the decedent because the first person jumped out of the way when he began shooting.
 
The Arrington court began with a truism: that federal courts interpreting U.S. Supreme Court case law have concluded that the admission of jailhouse statements to informants violate a defendant’s Sixth Amendment right to counsel only where 1) the statements were deliberately elicited by the information and 2) were made to a government agent.
 
Miller had not been acting as a government agent because he had no agreement with the government to record Arrington. The court  based that conclusion on the following:

• Miller unilaterally approached detectives about recording Arrington;
• Detectives told Miller that he could record Arrington if he wanted to, rather than directing him to do so;
• The detectives didn’t pay Miller or promise him payment if he recorded Arrington; and
• A previous agreement between the detectives and Miller to record another inmate had nothing to do with Arrington;

“Here, the detectives did not direct or control Miller’s questioning of Arrington….Furthermore, when Miller did choose to record, he was in control of what was recorded … The detectives could not listen into the conversations in real-time. They did not control Miller’s recording or questioning.”
 
However, there was one fact not taken into account by the court in this reasoning.  As stated by the court itself, the recording device Miller used was supplied by law enforcement.  When law enforcement furnishes the very means to record evidence, it is beyond incredible to say law enforcement did not control the recording.  Control the means to make the recording is controlling the recording.
 
Quite simply, the court should have recognized that without law enforcement involvement the recording could not have been made.  They controlled whether the recording could be made at all.  In so doing, law enforcement was involved in obtaining the statement.  By disregarding this fact, the court has invited the police to subvert a defendant’s Sixth Amendment rights by furnishing the tool to end run constitutional requirements.  See, The Bad-Apple Myth of Policing: Violence perpetrated by cops doesn’t simply boil down to individual bad actors—it’s also a systemic, judicial failing,  https://www.theatlantic.com/politics/archive/2019/08/how-courts-judge-police-use-force/594832/

Poster advertising a special issue of a Nazi newspaper about “race defilement” and the Nuremberg Laws,” US Holocaust Memorial Museum.

The book Skeleton of Justice, https://www.goodreads.com/book/show/3767951-skeleton-of-justice was written in 1941 by Roper and Leiser.  Edith Roper was one of the few correspondents to enter a Nazi courtroom so she had a clear insight what was happening in the courts.  As we know today, Nazi courts were a sham as nothing more than a political weapon against Nazi opponents.  Skeleton of Justice makes it clear that the criminal system is not immune from becoming a servant of political forces.
​
Nazi statutes were full of legal rules for oppression.  This was a part of Reichsgesetzblatt, ("RGBI") the official edition of statutes.  For instance, the notorious anti-semitic laws in the administration of Nazi justice, Roper and Leiser, p. 134 ff., 141 ff, was the so-called "Law for the protection of German blood and honor" of Sept. 15, 1935.  RGB1 1935 I 1146, deserves a prominent place.  This law created the new criminal offense of race defilement" (Rassenschande). It prohibited all marriages between Jews and Aryans under penalty of imprisonment with hard labor up to fifteen years. The same penalty was provided for extramarital sexual intercourse between members of these two racial groups. Jews were not permitted to employ Aryan female domestic help under 45 years of age, this offense being punishable with imprisonment up to one year and with fines. The same law also punished German Jews for showing the Swastika flag, probably an infrequent offense. Another decree of the same day deprived all German Jews of German citizenship.  RGB1 1935 I 1146.  The connection between the two decrees is obvious; both were manifestations of racial persecution in the field of law.

In his concurring opinion in Dobbs v. Jackson Women’s Health, Justice Clarence Thomas attacked substantive due process, a legal idea that says certain rights can and should be protected by courts, even if not specifically enumerated in the Constitution. The idea of substantive due process allowed abortion to remain protected for nearly 50 years despite not being mentioned in the Constitution or explicitly legalized in a federal statute.  “In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Thomas wrote in his concurring opinion, later saying that “we have a duty to ‘correct the error’ established in those precedents.”  These cases, like Roe, cases represent fundamental parts of American life that many take for granted. Griswold v. Connecticut established that adults have the right to use contraceptives, Lawrence v. Texas established that it is illegal to punish people for homosexual activity, and Obergefell v. Hodges legalized same-sex marriage on a national level. 

Unmentioned by Thomas was Loving v Virginia which found that substantive due process protected the right of different races to marry.  Thomas’ decision to exclude a case that directly benefits him (Thomas is married to Ginni Thomas, a white woman) demonstrates Thomas is not really concerned about legal process but more in obtaining results that advance his reactionary agenda of original interpretation of the Constituion.

As pointed out by Whoopi Goldberg on the TV show The View: “You better hope that they don't come for you, Clarence, and say you should not be married to your wife, who happens to be white, because they will move back…..And you better hope that nobody says, you know, well, you're not in the Constitution. You're back to being a quarter of a person."

And Jesus said to him, “Foxes have holes, and birds of the air have nests, but the Son of Man has nowhere to lay his head.”  Luke 9:58

First the numbers:

1. Total homeless in Wisconsin count in 2020: 4,515.  That is about 8 per 10,000 people
2. In January 2020, there were 580,466 people experiencing homelessness in America. Most were individuals (70 percent). They lived in every state and territory, and they reflected the diversity of our country.
3. People in families with children make up 30 percent of the homeless population. Unaccompanied youth (under age 25) account for six percent of the larger group.
4. Males are far more likely to experience homelessness than their female counterparts. Out of every 10,000 males, 22 are homeless. For women and girls, that number is 13. Gender disparities are even more evident when the focus is solely on individual adults (the most significant subgroup within homelessness). The overwhelming majority (70 percent) are men.

The reality:
The causes of being homeless are varied. In recent years, some people who were affected by the economic downturn and foreclosure crisis have become homeless.[1]  Some communities make it a crime to be homeless.  Many communities have laws that criminalize activities homeless people need to do in public to survive including:

• Sitting or lying down
• Loitering[2] or loafing
• Eating or sharing food
• Asking for money or panhandling
• Sleeping in cars and outside or camping[3]

 
Today, all too often society’s response to the conditions above is to deploy the criminal system to convict or make life hell for the homeless.  For example, the City of Santa Ana, California developed what the California Supreme Court described as a “four-year effort … to expel homeless persons” and “to show ‘vagrants’ that they were not welcome.” Tobe v. City of Santa Ana, 892 P.2d 1145, 1151 (Cal. 1995). As a part of what the trial court described as Santa Ana’s “war on the homeless,” police conducted sweeps in which homeless persons “were handcuffed and taken to an athletic field where they were booked, chained to benches, marked with numbers, and held for up to six hours, after which they were released at a different location.” Id. Some of the conduct leading to the arrests “involved nothing more than dropping a match, leaf, or piece of paper, or jaywalking.” Id.
 
It is unconstitutional to make the status of homelessness into a crime.  The “Cruel and Unusual Punishments” Clause of the Eighth Amendment “imposes substantive limits on what can be made criminal and punished as such.” Ingraham v. Wright, 430 U.S. 651, 667-68 (1977). Pursuant to that clause, the Supreme Court has held that laws that criminalize an individual’s status, rather than specific conduct, are unconstitutional. Robinson v. California, 370 U.S. 660 (1962). In Robinson, the Court considered a state statute criminalizing not only the possession or use of narcotics, but also addiction. Noting that the statute made an addicted person “continuously guilty of this offense, whether or not he had ever used or possessed any narcotics within the State”—and further that addiction is a status “which may be contracted innocently or involuntarily,” given that “a person may even be a narcotics addict from the moment of his birth”—the Court found that the statute impermissibly criminalized the status of addiction and constituted cruel and unusual punishment. Id. at 666-67 & n.9.
 
Six years after Robinson, the Court addressed whether certain acts also may not be subject to punishment under the Eighth Amendment if they are unavoidable consequences of one’s status. In Powell v. Texas, 392 U.S. 514 (1968), the Court considered the constitutionality of a statute that criminalized public intoxication. A four-member plurality interpreted Robinson to prohibit only the criminalization of status and noted that the statute under consideration in Powell criminalized conduct—being intoxicated in public—rather than the status of alcohol addiction. The plurality declined to extend Robinson, citing concerns about federalism and a reluctance to create a “constitutional doctrine of criminal responsibility.” Id. at 534 (plurality opinion). Moreover, the plurality found that there was insufficient evidence to definitively say Mr. Powell was incapable of avoiding public intoxication. Id. at 521-25. The dissenting justices, on the other hand, found that the Eighth Amendment protects against criminalization of conduct that individuals are powerless to avoid, and that due to his alcoholism, Mr. Powell was powerless to avoid public drunkenness. Id. at 567 (dissenting opinion). The dissenters, therefore, would have reversed Mr. Powell’s conviction. Id. at 569-70.
 
Justice White provided the decisive fifth vote to uphold Mr. Powell’s conviction. Instead of joining the plurality opinion, in a separate concurrence he set forth a different interpretation of Robinson. Justice White did not rest his decision on the status-versus-conduct distinction raised by the plurality. Instead, Justice White considered the voluntariness, or volitional nature, of the conduct in question. See Powell, 392 U.S. at 548-51 (White, J., concurring in the judgment). Under this analysis, if sufficient evidence is presented showing that the prohibited conduct was involuntary due to one’s condition, criminalization of that conduct would be impermissible under the Eighth Amendment. Id. at 551.
 
Therefore, if one is involuntarily made homeless, and the state seeks to prosecute you, you may have a defense.  People v. Gonzalez, 7 Cal.App.5th 370 (2017) (cannot revoke probation due to homelessness); Justin v. City of Los Angeles, No. CV-00-12352 LGB (AIJx) (C.D. Cal. Dec. 5, 2000).  If a defendant presents evidence that defendant slept in a public place because his alternatives were inadequate and economic forces were primarily to blame for his predicament, he may present a defense of necessity.  In re Eichorn, 81 Cal. Rptr. 2d 535, 540 (Ct. App. 1998) (permitting a homeless man, arrested for sleeping in a public location, to raise the necessity defense); Johnson v. Dallas, 860 F. Supp. 344, 350 (N.D. Tex. 1994), rev'd on other grounds, 61 F.3d 442 (5th Cir. 1995) (ordinance violated the Eighth Amendment in that at any given time there are persons in Dallas who have no place to go, who could not find shelter even if they wanted to - and many of them do want to - and who would be turned away from shelter for a variety of reasons.).  See 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law 5.4(a) (1986) (explaining that "one who, under the pressure of circumstances, commits what would otherwise be a crime may be justified by "necessity' in doing as he did and so not be guilty of the crime in question"); Michael M. Burns, Fearing the Mirror: Responding to Beggars in a "Kinder and Gentler" America, 19 Hastings Const. L.Q. 783, 809 (1992) (discussing the application of five common law elements of the necessity defense to the crime of begging); Robert C. McConkey III, "Camping Ordinances" and the Homeless: Constitutional and Moral Issues Raised by Ordinances Prohibiting Sleeping in Public Areas, 26 Cumb. L. Rev. 633, 658-59 (1995-1996) (discussing potential factors that courts could utilize in determining the application of the necessity defense); Donald E. Baker, Comment, "Anti-Homeless" Legislation: Unconstitutional Efforts to Punish the Homeless, 45 U. Miami L. Rev. 417, 452-53 (1991) (applying a hypothetical example of a homeless woman arrested for sleeping on the street to the four traditional elements of the necessity defense. But see David M. Smith, Note, A Theoretical and Legal Challenge to Homeless Criminalization as Public Policy, 12 Yale L. & Pol'y Rev. 487, 508 (1994) (advocating for the application of the defense of duress to anti-homeless ordinances over the defense of necessity).  See also Davidson v. Tucson, 924 F. Supp. 989, 993 (D. Ariz. 1996) (discussing the plaintiffs' claim that the anti-camping ordinance violated their right to travel, a fundamental constitutional right); Pottinger v. City of Miami, 810 F. Supp. 1551, 1554 (S.D. Fla. 1992) (noting that members of the class of plaintiffs could not raise the defenses of necessity or duress to contest an ordinance that criminalized sleeping and eating in public places because authorities released the arrested plaintiffs from custody without being charged)
 
The court did not analyze why Eichorn was denied public assistance, why he was not working at the time he was cited, or why he did not contact relatives or travel to another location, each of which may have been used to determine whether he was involuntarily homeless.  The court made clear that once Eichorn proved the basic elements of the necessity defense, he could evoke such defense without inquiry into the causes of his homelessness. Thus, if a defendant shows that: (1) the shelter was full, (2) there were more homeless people in the area than shelter space, and (3) he or she did not have funds to afford housing or a motel room, then any alternative to sleeping in public, such as staying awake and moving around, will be inadequate to rebut application of the defense.
 
The Bible says to help those who are homeless, not prosecute them. In Leviticus 25:35 God commands His people to help support those who have no home and cannot support themselves: “If any of your fellow Israelites become poor and are unable to support themselves among you, help them as you would a foreigner and stranger, so they can continue to live among you” (see also Deuteronomy 15:7–11). The Lord rebuked those who kept the outward form of religion yet did not care for the poor: “Is not this the kind of fasting I have chosen: . . . to share your food with the hungry and to provide the poor wanderer with shelter—when you see the naked, to clothe them, and not to turn away from your own flesh and blood?” (Isaiah 58:6–7).


[1] U.S. Dep’t of Hous. and Urban Dev., 2014 Annual Homeless Assessment Report (“2014 AHAR”) 1 (October 2014), available at https://www.hudexchange.info/resources/documents/2014-AHAR-Part1.pdf. The 2014 AHAR found that as of January 2014, 578,424 individuals in the United States were homeless on any given night

[2] Loitering statutes are constitutionally suspect.  City of Chicago v. Morales, 527 U.S. 41, 53-55 (1999) ([T]he freedom to loiter for innocent purposes is part of the "liberty" protected by the Due Process Clause of the Fourteenth Amendment.); United States ex rel. Newsome v. Malcolm, 492 F.2d 1166, 1171-74 (2d Cir. 1974), aff’d on other grounds sub nom. Lefkowitz v. Newsome, 420 U.S. 283 (1975).

[3] https://invisiblepeople.tv/category/learn-more/criminalization-of-homelessness/