Homelessness: Some Aspects of a Meaningless Debate

As the lawyers say: "Objection! You're assuming a fact not in evidence!"

The common choices posed and debated by homeless advocates seem to be whether the problem of homelessness is best solved by “housing first” or rehabilitation.  The former seems to be the more popular among progressive advocates these days.  There is a sort of crude logic to the position:  give a homeless person an apartment and he isn’t homeless any longer— at least by definition.  This isn’t a solution for most of the homeless, of course, because it inverts cause and effect.  Superficially, though, the idea is attractive:  someone living on the street cannot hold down a job because he hasn’t got an address or a stable place in which to rebuild his life and, presented this way, the case against it seems inarguable.  There’s hardly a job to be had for someone who sleeps in a tent on the sidewalk and faces all the attendant difficulties posed by such an existence.

Now for rehabilitation.  The “housing first” proponents argue further, and reasonably enough, that most addicts decline drug rehabilitation or, if it is forced on them, almost inevitably return to drug use as soon as they are able.  But is this an argument for housing first?  The problems are independent, and there’s no reason to expect that an addict given an apartment will stop taking drugs.  The deplorable conditions which the drug addicted homeless leave their apartments shows this.  A clear-eyed observer might suggest that this alone is an argument against “housing first.”

To argue for “housing first” or rehabilitation is simply to miss the point.  How?  Trial lawyers introducing evidence are careful to present it in such an order and so completely that no pieces of evidence are left out as they form a chain of proofs in support of a claim.  Any effort to skip a step is subject to an objection known as “assuming a fact not in evidence,” and the case (or that aspect of it) should go no further until the underlying fact upon which the chain of evidence rests has been established.  In short, the law tries to forestall arguments that lack necessary elements. The “housing first”-or-rehabilitation debate is an example of an argument lacking a most important piece; it assumes a fact not only “not in evidence”, and it dismisses a fact much in evidence:  the incompetence of most homeless.

A street in San Francisco. Credit: New York Post.

I use the term “incompetence” in a more or less legal sense.  Law books such as case digests and legal encyclopedias (among other reference works) are indexed for the convenience of lawyers, and they always have a section entitled “Children and Other Incompetents,” which directs the reader to cases, statutes and so on that concern these people.  What is it that children and others judged incompetent cannot do?  They cannot make contracts, they cannot marry, they cannot vote, they cannot make wills; in short, they are not permitted to conduct the sort of business necessary for independent living.  Decisions of any significance must be made by parents, guardians or conservators.   My point is simple:  the law recognizes a class of persons as incompetents, as persons incapable of making reasonable decisions about themselves and others.  This should surprise no one with the slightest practical experience of the world.  Any surprise should be directed at the unwillingness of city and state governments to recognize and deal with the problem of widespread incompetence and its consequences on their streets.

Thus, when homeless advocates or city governments argue for either housing or rehabilitation (or enact provisions for either) they presume that the homeless are capable of exercising free will in such a way as not to harm themselves and others.  This is the unproven assumption in either position, an assumption which, I suggest, has in fact been disproven.  That most of the homeless are capable of properly using their free will is demonstrably false, and the demonstration of it is plain to see in the tent encampments and the conduct of the homeless in any number of major cities.

Some small minority of the homeless are on the street though no fault of their own and suffer from no mental disfunction or drug addiction.  These unfortunates are often put forward as representatives of the homeless, but they do not represent the majority.  Apparently, more than 80 percent of the homeless suffer mental problems, and the same number are drug addicts.  These two latter groups overlap substantially.  The question is what is the most humane policy for dealing with this population, the overwhelming majority who are incompetent?

Obviously, at least apart from the homeless, the law has a solution:  someone else makes decisions for incompetents; they do not make them for themselves.  Any reader who has made it this far can see where my argument is going; someone or some entity must make decisions for the homeless.  This may seem hard, and it is in fact a curb on their freedom, but it is a curb on their freedom to occupy and thus deny public space to the public, to render downtowns and city parks squalid, to buy, sell and take drugs in public, to urinate and defecate in public, to ruin businesses by their presence, to take up emergency services, and to die in public.  The solution, it seems to me, is custodial arrest.

What sort of housing and supervision the homeless should have after custodial arrest is beyond the scope of this article— perhaps some sort of facilities outside of cities where they can be housed and encouraged to rehabilitate in a wholesome setting where there is help for their mental conditions.

Surely some simple triage system could be used to discover the small percent of the homeless who can be salvaged and helped to return to a normal life through some alternative path.  A brief conversation and a drug test would discover these people.  But what of the far greater number who fail this triage?  The solution, it seems to me, is rather obvious, so why do governments, responsible as they are supposed to be for public order, not do it, and why do homeless advocates not call for it?  The answer may be that they believe that everyone, even the incompetent, must be allowed the utterly unrestricted exercise of his personal freedom, not only to the cost of the public, but to the extent of letting the homeless die on the street.  Custodial arrest may seem unattractive, but how can it not be more humane than the current hands-off approach?

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