206. "Helping the Homeless Help Themselves" Legal Times, (March 18, 1991). Published also: Fulton County Daily Report, Atlanta, GA, p. 10, American Lawyer Media, (March 20, 1991). Connecticut Law Tribute, Stamford, CT (March 25, 1991); Broward Review, Florida, p. 13, (March 27, 1991), Palm Beach Review, p. 13, (March 27, 1991), Miami Review, Knight-Ridder, (March 27, 1991) p. 13.


Among the least reported results of last November’s elections - and one that is only now coming into effect - was the insistence by voters of the District of Columbia that residents of the city’s homeless shelters attend rehabilitative programs, work, and save for their future housing.

Because government paternalism (for that’s what this is) evokes almost automatic rejection these days in many circles, the verdict of D.C. voters in its favor deserves closer scrutiny.

First, a bit of background. In 1984, the citizens of the District of Columbia approved Initiative 17, which created a new entitlement: a right for all homeless people to shelter at public cost. Consent decrees signed by the city government in cases brought by homeless activists expanded this basic right to include entitlements to transportation to the shelters; to shower facilities with towels, soap, and shampoo; to a specified number of commodes per capita; and to sanitary napkins for women.

Soon the costs of the programs mushroomed - from $9.2 million in 1985 to $40 million in 1990 - and the number of homeless seems to have increased. Critics claimed that Washington had become the Mecca of the homeless, attracting them with its generosity. People in whose neighborhoods the homeless were placed complained that the shelter programs did nothing to address the underlying causes of homelessness, such as mental illness and addiction.

The D.C. government responded in the summer of 1990 by limiting the entitlement to 30 days of shelter for individuals and 90 days of shelter for families, although the stay could be extended. Most important, shelter residents were to take on various duties as a condition of their stay. They were obliged to register; to participate in drug and alcohol treatment programs; to find work, do community work (four hours a day), or spend the time in a classroom; and to put aside 30 percent of earnings toward gaining a private residence.

These conditions enraged the Community for Creative Non-Violence and other champions of the homeless. They argued that people had an absolute right to shelter and that no strings should be attached - not even a registration requirement. A new initiative was put before the voters to force the District to remove the paternalistic requirements. The initiative was defeated last November (albeit narrowly, 51 percent to 49 percent) and the “duty” law became effective just a few weeks ago, after the congressional review period expired.

The Community for Creative Non-Violence continues to campaign against the regulations, claiming that they cause the homeless to refuse to seek shelter and thus lead to winter deaths. Similar issues are being raised in other cities, from San Francisco to New York.

Usually one would expect “conservatives” - that is, those who are opposed to big government - to oppose paternalism and argue that people ought to be left free to follow their own choices. But this is not the case; home owners and their associations, real-estate lobbies, and activists previously associated with conservative causes lead the movement to impose restrictions within the shelters.

The main opponents of government paternalism are the radicals among the coalition for the homeless. It is they who argue that the homeless are victims of the system but otherwise are like anybody else and fully able to attend to their own affairs - and thus should not be made to save, train, or do anything else.

Toward a resolution

The issue might be resolved, at least on the level of principled understandings of what is fair and what is unfair, by first acknowledging that the homeless are not all cut from the same cloth. Many - estimates run between one-third and two-thirds - are mentally ill. These are people who in varying degrees are not able to make sensible choices for themselves.

In the last 20 years, the legal system has, by and large, treated mental patients as if they had no diminution of rights whatever. For instance, they have the right to refuse to be confined (unless they harm others) and the right to refuse treatment. This trend was a backlash against abuses in institutionalization that came to light in the late ‘60s, but the pendulum may have swung too far. It seems sensible that mental patients, especially those in public shelters, should be subject to some requirements.

On the other hand, other homeless persons - those merely laid off from jobs, and as a result, unable to pay their rent but quite otherwise intact - may indeed best be helped by a housing allowance or housing voucher, without additional encumbrances. If these are not available (they are more costly than shelters, at least in the short run), the question stands: What is the community entitled to ask of them in exchange for free shelter?

Robert Goodin, an ethicist at the Australian National University, treats that question directly in a forthcoming article in the new quarterly The Responsive Community. Goodin argues that there are clearly situations in which one may force a course of action on others. One of the most compelling situations, he argues, is when the person clearly shows in his won behavior that he wishes to change his conduct, but is unable to do so without help.

For example, Goodin sees it as permissible to limit access to liquor for an alcoholic who has attended Alcoholic Anonymous sessions and sought medical help to stop drinking, but has so far failed to curb his addiction. (This would contrast with forcing Zen Buddhism - or a low-cal diet - on a person who showed no inclination or interest.) The reasoning is that we should respect a person’s real choice, rather than be taken in by his most recent behavior.

By this criteria, it may well be argued that the homeless person in full command of her mental capacities, who voluntarily presents herself at a shelter, is seeking, well, shelter. To the extent that she has income, to demand that she put some of it aside so that she might eventually acquire a residence of her own and return to a life fully unencumbered seems just. It would be quite a different matter to require a homeless to put aside money for, say, music-appreciation classes, assuming he has indicated no interest in this area, however “good” music appreciation might be for him.

Similarly, expecting that those in shelter will learn a trade can be seen as a means of restoring them to a life that presumably they would prefer - a life of autonomy and self-sufficiency, outside public shelters and their requirements. Other regulations seem justified on the grounds that those in shelters should not be treated as exempt from requirements we all face. Surely no one has a right to endanger or trouble others in a shared residence or not to enroll their children in school. After all, the state would not tolerate knife flashing or truancy even among the paying customers at a Holiday Inn.

Whether they are driven by philosophical considerations or simply elementary common sense, the majority of voters in Washington D.C. - one of the most liberal communities in the country - agree. It is likely that voters in other cities would reach similar conclusions: Putting some restrictions and demands on the homeless who seek shelter seems morally permissible.

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