As the Honolulu City Council considers expanding the sit-lie ban enforced on homeless people, a group of law professors says the law is both illegal and nonsensical.

Two proposals being considered would be the latest in a string of additions to the sit-lie law that started in Waikiki in 2014. In a letter to council members, 35 legal scholars – including six University of Hawaii law professors –  say Honolulu is doubling down on a policy that violates people’s protection against cruel and unusual punishment. 

“Every expansion, every amendment that creates a new crime for houseless people to be where they were just forced to go, shows how the law’s target is unhoused people themselves; not their conduct, but their status as part of the city’s houseless population,” the professors wrote. “That is precisely what the Constitution forbids.”

The authors of the letter include professors from schools like Cornell, Columbia and Georgetown universities. Eric Tars, an adjunct professor at Drexel University who is also the legal director of the National Law Center on Homelessness & Poverty, also signed on.

Bill 13, introduced by Councilman Joey Manahan, would expand the sit-lie restriction to the streets surrounding the Institute for Human Services shelters in Iwilei. IHS Executive Director Connie Mitchell has said the broadened restriction is necessary because unsheltered people in the area have become a health and safety threat to residents of her shelters. The bill passed second reading and was voted out of the council’s public safety committee on Thursday.

Councilwoman Carol Fukunaga’s Bill 37 would limit sitting and lying hours in Chinatown and downtown. As it is, people can sit or lie in those neighborhoods from 11 p.m. to 5 a.m. Fukunaga wants to allow it only between 2 a.m. and 5 a.m. The bill passed first reading at Wednesday’s full council meeting.

The Chinatown Improvement Association endorsed Fukunaga’s bill in written testimony. The president of the organization wrote that 5 a.m. is when early morning markets open and late-night pubs and restaurants don’t close until 2 a.m.

“Our organization supports Bill 37 as a means of accomplishing better access, health and safety for all users of public sidewalks while also encouraging appropriate referrals for those in need of services and shelter,” E. Lee Stack wrote.

Both bills are likely to pass and get the endorsement of Mayor Kirk Caldwell. The only member of the council who has objected is Councilman Brandon Elefante.

A 2018 decision from the 9th U.S. Circuit Court of Appeals, which has jurisdiction over Hawaii, states that “as long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter.”

It’s Honolulu’s position that the homeless people who are ticketed have the choice of shelter – even though there were over 2,400 unsheltered homeless people on Oahu last year and only a few hundred empty shelter beds at any given time.

Because Honolulu police do not enforce the law on the entire island’s unsheltered population at once, their piecemeal actions are legal, according to Housing Director Marc Alexander.

Outreach workers touch base with encampments before sweeps and the city provides 24/7 transportation to shelter, Alexander said.

“We always have space for everyone in the area being enforced,” he said in a statement.

The authors of the letter don’t buy that logic.

“The more area it covers — the more it narrows the space where people without shelter may permissibly sleep or rest — the more blatantly it violates the Constitution,” the letter states.

Even the availability of a bed doesn’t mean a person can or will actually take it, said Justin Levinson, a UH law professor. Shelters don’t always take in whole family units or pets and don’t always offer storage for all of someone’s belongings. Some people just feel unsafe in shelters, Levinson said, particularly now, during the COVID-19 pandemic, which has hit homeless shelters hard around the world.

“Sometimes they feel safer in their houseless situation,” he said. 

In their letter, the law professors argue that the sit-lie ban hasn’t fulfilled its ostensible purpose of getting people into housing. Since 2014, the number of unsheltered people on Oahu has grown 47%, according to the latest report on the homeless count. The ban has “saddled people with fines, fees, and arrest records that only make it harder to exit homelessness,” the letter states.

“It’s a political strategy rather than an evidence-based one,” Levinson said.

The issue has only become more dire, the lawyers wrote, because of COVID-19. With coronavirus-related business closures, unemployment has skyrocketed, and experts have predicted a surge in evictions and homelessness nationwide. Meanwhile, shelter managers have reduced their capacity to allow for more social distancing.

If Honolulu continues to expand its crackdown on people sleeping outside, people who have lost their livelihoods because of the virus-related financial crisis are likely to get caught up in the system, the letter states.