The Right to Housing & Forced Institutionalization of Unhoused Populations in New York City

In late 2022, New York City Mayor Eric Adams issued a new directive that would allow police officers to commit an unhoused person to a hospital against their will if they are perceived to be mentally ill or dangerous to themselves or others. Mayor Adams’ efforts, a stark change from previous policies that required further evaluation before institutionalization, have faced significant backlash. Some responded by calling for a temporary restraining order to prevent this policy from going into effect, citing concerns for further discrimination and criminalization of the already economically and racially marginalized populations. Others argued that the new directive violated the constitutional rights of New Yorkers. These legislative reforms, although done in the name of caring for unhoused populations, often result in their mistreatment, begging the question: how have new policies diverted policymakers from upholding constitutional and international standards for housing rights?

The right to housing is an international human right, enshrined in multiple international agreements, including the International Covenant on Economic, Social, and Cultural Rights (ICESCR). Article 11.1 of the ICESCR states that “The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions.” [1] Additionally, ICESCR mandates that “the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” [2] However, as it delineates, such requirements only apply to those who are party to the international agreement and have ratified it, which the United States has not. U.S. policymakers’ refusal to ratify the ICESCR indicates a much larger legal, political, and social trend of neglecting the rights of marginalized people, particularly with respect to homelessness. Evidence has shown that due to other systems of discrimination and oppression, people of color experience homelessness at rates much higher than white Amercians. In New York, for instance, 58% of homeless shelter residents are Black and 31% are Latinx, but only 7% are white, less than 1% are Asian, and 3% are unknown. [3] Thus, the state fails to uphold the right to shelter, particularly for Black, Indigenous and People of Color (BIPOC) populations, considering the effects of racial discrimination and inequity at hand. Given its nature as a non-party, the United States does not violate the ICESCR per se, but it nonetheless fails to meet the international standard of housing rights.

As aforementioned, the United States has yet to ratify the ICESCR and is therefore not legally bound to implement its rules. Such a circumstance speaks to the larger legal and political trend across the U.S. towards depriving unhoused populations of their human rights as well as societal beliefs about what conditions should be provided to unhoused populations. Despite the trend, New York City does have a right to shelter established in Callahan v. Carey (1979), a landmark New York County Supreme Court case in the evolution of the rights of unhoused people. It reminded the public that the right to shelter is protected by the New York State Constitution amid the emergence of modern homelessness in New York City. [4] In 1979, Robert Hayes, the founder of the Coalition for the Homeless, filed a lawsuit on behalf of unhoused people in New York (specifically one by the name of Robert Callahan), citing their inaccessibility to housing and other support that was apparent in increasing unhoused populations. [5] The plaintiff argued that a constitutional right to shelter in New York existed under Article XVII of the New York State Constitution, which explicitly stated that “the aid, care and support of the needy are public concerns and shall be provided by the state and by such of its subdivisions.” [6] Ultimately, the New York State Supreme Court ordered the State and City to provide shelter for the unhoused, but the case wasn’t settled until two years later when they agreed to provide shelter to all who met established standards “by reason of physical, mental, or social dysfunction.” [7] The court also established minimum health and safety standards for city and state shelters and appointed the Coalition for the Homeless to monitor adult shelters. [8] Callahan was crucial because it established the right to housing and halted the legal-historical trend surrounding homelessness in New York City. Though it made housing rights constitutional in New York City, recent developments under Mayor Adams cause uncertainties to this important precedent. They also pose a danger to unhoused populations by perpetuating societal beliefs of the sort of treatment unhoused people deserve, putting them more at risk.

On top of fighting to secure the constitutional right to housing, the unhoused have also battled challenges surrounding mental health and related rights. Policies in place are reflective of societal beliefs that often conflate homelessness with mental illness, leading to the deprivation of rights for people who struggle with either. The 1984 case of Klostermann v. Cuomo, which then prompted Heard v. Cuomo (1987) and Koskinas v. Boufford (1987), confronts the issues of both homelessness and mental health resources in New York City. Klostermann argued for the continuation of housing provisions for former psychiatric patients who were then experiencing homelessness. [9] Originally dismissed on the grounds that the lack of state funds for such resources is not a failure to protect the rights of unhoused individuals. Klostermann inspired Heard and Koskinas, filed against the state hospital system and city hospital systems respectively, which fought for both the implementation of adequate housing for those discharged from hospitals and ensuring their bodily autonomy and right to shelter. [10]

These cases are important precedents for the aforementioned policy changes for several reasons. First, they represent the intersection between the rights of the unhoused and of those

experiencing mental health issues. Moreover, they demonstrate how legislators, courts, and communities overall easily conflate the two and thus exacerbate such issues. In the process, those experiencing homelessness or mental health issues are not given crucial resources they are entitled to, such as housing, healthcare services, food, and clean water, rendering them even more vulnerable. Each of these three cases confronts trends of legal and social battles over providing unhoused people with resources and support they have a right to, and establishing a need to provide more access to housing in New York, as established in Callahan v. Carey. Additionally, they have laid the legal groundwork for current legislation and arguments around the rights of unhoused populations.

Mayor Adams’ policy, however, instructs police officers to bring individuals to the hospital if they are believed to be unable to meet their own basic needs. [11] This policy is a break from previous standards that required someone to pose a clear and present threat to themselves or others in order to be forcibly taken to a hospital. [12] These policies fail to uphold the constitutional and international rights of unhoused people as well as provide them with resources that could offer long-term social and economic stabilization, overcrowd the healthcare system, and traumatize people in the process of being forcibly institutionalized. When governments intentionally deprive specific populations of their rights through legislative reform, they explicitly express a lack of consideration for the livelihood of the targeted populations, dehumanizing and further marginalizing them. Mayor Adams is depriving unhoused populations and those experiencing mental health issues of their bodily autonomy and internationally recognized and state established rights to safe and adequate shelter, widening racial, economic, and legal disparities in the process.

These recent policy changes do not comply with precedents established in Callahan v. Carey. They make an overarching and unjustifiable characterization of the homeless as mentally ill instead of safeguarding their rights to necessities such as food, water, and shelter. This issue sheds light on deep societal biases that neglect unhoused populations and thus the racial and economic minorities that experienced homelessness disproportionately. Governments must recognize and implement housing as a human right, and that the large populations of those who are unhoused are deprived of this right. Additionally, using institutionalization in such a way to restrict physical movement and reduce rights criminalizes both unhoused populations and those with mental health issues, and contributes to the dehumanization of both populations by depriving them of resources needed to live safe and healthy lives.

The right to shelter is internationally regarded as a human right in international law, as well as in several major cities in addition to New York. Many state governments are in violation of this right in their neglect to care for and support unhoused populations, yet elected officials and others do little to change these circumstances due to internalized biases against those who are more likely to experience homelessness because of their physical or mental abilities, race,

ethnicity, economic status, and more. The recently proposed policies by Mayor Eric Adams fail to provide housing to thousands of people and further stigmatize unhoused populations and reduce their autonomy by institutionalizing them against their will and dehumanize them in the process. The detriments of failing to fulfill such a right as seen in Klostermann v. Cuomo, Heard v. Cuomo, and Koskinas v. Boufford demonstrate how homelessness and mental health issues respectively are exacerbated by other legal, economic, and social inequities, as well as the need for further resources for those experiencing mental health issues. Mental health issues need to be equitably addressed, while noting how mental health concerns are unfairly weaponized to both stigmatize and criminalize unhoused people. While the United States should make steps towards ratification of ICESCR and other international agreements in order to protect the right to housing, the more likely solution is establishing and fully implementing a right to housing in U.S. Constitutional law or individual state laws.

Edited by Sunny Fang

[1] “International Standards: Special Rappateur on the Right to Adequate Housing.” Officer of the High Commissioner on Human Rights, n.d. Retrieved from: https://www.ohchr.org/en/special-procedures/sr-housing/international-standards#cultural

[2] “International Standards.”

[3] “Facts About Homelessness,” Coalition for the Homeless, 2023. Retrieved from: https://www.coalitionforthehomeless.org/facts-about-homelessness/

[4] “The Callahan Legacy: Callahan v. Carey and the Legal Right to Shelter,” Coalition for the Homeless, n.d. Retrieved from: https://www.coalitionforthehomeless.org/our-programs/advocacy/legal-victories/the-callahan-leg acy-callahan-v-carey-and-the-legal-right-to-shelter/

[5] “The Callahan Legacy.” [6] “The Callahan Legacy.” [7] “The Callahan Legacy.” [8] “The Callahan Legacy.”

[9] “Other Coalition for the Homeless Legal Victories,” Coalition for the Homeless, n.d. Retrieved from:

https://www.coalitionforthehomeless.org/our-programs/advocacy/legal-victories/other-coalition-f or-the-homeless-legal-victories/

[10] “Other Coalition for the Homeless Legal Victories,” Coalition for the Homeless.

[11] Ayesha Rascoe, “A New Policy in New York City Makes it Easier for Homeless People to be Forcibly Hospitalized,” National Public Radio, 2022. Retrieved from: https://www.npr.org/2022/12/04/1140630177/a-new-policy-in-new-york-city-makes-it-easier-for- homeless-people-to-be-forcibly

[12] Rascoe, “A New Policy.”