Public Comment

A Modest Proposal for Alternatives to the Criminalization of Homelessness in Berkeley, California

Asher Waite-Jones
Friday November 13, 2015 - 03:22:00 PM

On November 17, Berkeley’s City Council is set to vote once again on laws that would create new crimes that only homeless people are likely to be charged with. 

In 2012, voters rejected a measure that would have criminalized sitting on the sidewalk. This past June, it was well past midnight when the Council gave up an attempt to pass a raft of new anti-homeless laws including one that would have made it a crime to put anything on the sidewalk that takes up more than two square feet. Try lying down on a two-square-foot sleeping bag. Protestors chanted “Shame! Shame! Shame!” as the councilmembers left the chamber. 

Now these laws are back, and I have a few suggestions for the Berkeley City Council. 

Councilmembers, I’ve read your proposals, and I tell you: Criminalization doesn’t work. You can arrest homeless people for pooping and peeing, putting their belongings on the sidewalk, and lying down, but these are necessities of life. Recognizing this, your humble correspondent asks that you consider these alternative proposals, which would create services that specifically address the root cause of the issues the Berkeley City Council have noted, creating a solution that is both more humane and sustainable. 

Here’s what you propose, and my suggestions: 


YOUR PROPOSED ORDINANCE: Allows a “traffic engineer,” to make the rules for what people can put on the sidewalk. You suggest two square feet, or six square feet for a shopping cart from 7AM to 10PM. Also criminalizes attaching belongings to public fixtures like poles.

MY PROPOSED ALTERNATIVE: Create secure storage spaces in multiple accessible places. 

Homeless people often have all of their things with them – where can they keep them if they don’t have a home? You propose to create one storage space for homeless people to put their things. Great idea. Except, will one be enough? How large will it be? Where would it be located? Will it be walking distance for people with disabilities or who are ill? Will people have access to their stuff 24/7? None of these questions will be answered before your ordinance goes on the books. And by the way, why is a traffic engineer deciding what homeless people can do on the sidewalk? People are not curb cuts or speed bumps. 


YOUR PROPOSED ORDINANCE: Criminalizes peeing and pooping in public. 

MY PROPOSED ALTERNATIVE: Create a sufficient number of public restrooms and showers for homeless people in Berkeley. 

Everybody poops. But the vast majority of restaurants and stores in downtown Berkeley do not allow non-patrons to use their bathrooms. 

You say you will provide more bathrooms and showers in the Downtown and Telegraph areas. But you promised that before. And where will they be? When will we get them? How long will we have to wait in line? And, most importantly, will the toilet paper be organic and will the soap be scent-free? (This is Berkeley, after all.) We’ll get the law, but as for the bathrooms, all we have are promises. 


YOUR PROPOSED ORDINANCE: Criminalizes putting belongings in planters or in or near tree wells. 

MY PROPOSED ALTERNATIVE: Create a job program that would pay homeless people to care for Berkeley’s trees and other greenery. 

Take a page out of San Francisco’s book – SF’s Clean City Partnership provides jobs for low-income and homeless people to clean the sidewalk and care for the city’s greenery. 

Trees are important, but so are humans, including homeless humans. And really, this is such a big problem you need to pass a law about it? 


YOUR PROPOSED ORDINANCE: Criminalizes lying in or on the walls of City-Owned Planters  

MY PROPOSED ALTERNATIVE: Create more affordable housing and homeless shelters in Berkeley. 

Like pooping and peeing, everybody needs to lie down when they’re tired. I used to fall asleep in my 10th grade chemistry class. As my teacher can tell you, waking somebody up and telling them they’re not allowed to sleep won’t prevent them from going right back to sleep the moment you walk away. 

If we are honestly concerned about homeless people lying in planter beds, we need to provide them with viable alternatives, such as homeless shelters and affordable housing. The US Department of Housing & Urban Development (HUD), gives federal dollars to localities to develop these types of projects, and it chooses which localities and projects to fund based on an application. HUD has allocated two extra points to projects in localities which have been taking active steps to decriminalize homelessness. HUD has also made its application for funding more competitive this year, by ranking projects against one another nationally – for the first time ever, projects in Berkeley will be competing against projects across the county for funding. By criminalizing homelessness, the City of Berkeley is potentially shooting itself in the foot when it comes to being able to create more housing for its homeless population. 


Across the country, there’s growing consensus that criminalizing homeless people is inhumane, futile, and counterproductive. Giving the police more power to cite people for petty offenses won’t make them go away. It just makes their lives more miserable. I believe, with my last shred of optimism, that the Berkeley City Council is capable of grasping this reality. It can show this on November 17, by rejecting the proposed laws and joining with the community to seek real solutions to real problems. 

Asher Waite-Jones is a Berkeley resident and a 3rd year law student at UC Berkeley School of Law. He is currently an intern in the Homelessness Unit at the East Bay Community Law Center.