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Does discharging a homeless person from emergency shelter as punishment for wrongdoing constitute torture?

February 12, 2020 Category: ColumnFeaturedLongPurpose


Update: See Editor's note at the end of this article, added 03/03/20.
When you hear the phrase “homeless services,” it’s easy to think that it means only services to people experiencing homelessness. For example, we like to talk about emergency shelter as if it meant only providing shelter. But that’s not entirely true.

As an emergency shelter staff-member, I have been given the power to bring someone inside off the streets or send him right back — more or less at my discretion. And I’m not the only one with that power. There is no legal right to shelter in Philadelphia — which means those of us who can grant you access to shelter can also withhold it, restrict it, or take it away.

This is the dark side of “homeless services.”

When an emergency shelter guest violates shelter rules and regulations, the standard response is to “discharge” or suspend him from the shelter for a certain period of time — a day, a week, a month, six months, or even longer. When this happens, it’s possible that the person might immediately access another shelter to avoid street-homelessness — but he might not.

The harsh reality is that people experiencing homelessness are often extremely resistant to entering shelter, or may be banned from shelter, or even turned away from shelter. After all, according to the Office of Homeless Services, on one night in January 2018 there were 5,788 people experiencing homelessness in Philadelphia, but fewer than 4,000 emergency housing beds. So if you find yourself discharged from a shelter today, there is no guarantee you will find another shelter bed before sundown.

As a result, the standard punishment for wrongdoing in emergency shelters deprives a homeless person of his access to overnight shelter and seriously jeopardizes his ability to regain it.

Without even considering specific examples, I think we can agree that this practice is very serious. Sadly, there is also a sense in which it meets the criteria to be considered torture under the 1984 United Nations (UN) international Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. This possibility, this ambiguity, is deeply concerning. If there is a chance that a disciplinary practice we take for granted could reasonably be considered torture, then we need to talk about it.

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So let’s talk about it here.

The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment defines “torture” in Article 1, Section 1 as:

“Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”

A condensed, operational version of the definition of torture might read:

The act of intentionally causing someone severe pain or suffering in order to coerce or punish him, and done with the participation, permission, or acquiescence of someone acting in an official capacity.

Now let’s consider how this definition applies to emergency shelter settings.

Many emergency shelters receive funding from government institutions, abide by government policies, and are audited to ensure their compliance with these policies. Employees working for such shelters can be understood to act in an official capacity through their collaboration with public officials, their receipt of public funds, and their compliance with public policies — in addition to the fact that their work itself constitutes a form of public service.

We may be civilians in the sense that we are not elected or appointed government officials, but in the context of our work in homeless services we are something more than civilians. After all, there is a difference between the pedestrian who calls Homeless Outreach to report a man sleeping on the street, and the manager of the shelter where that man is transported to. Only one of those individuals is acting in an official capacity on behalf of the City of Philadelphia’s mission to make homelessness rare, brief, and nonrecurring.

What’s more, the UN definition of torture does not require a person to be an elected or appointed official, but rather any “public official” or any “person acting in an official capacity.” In other words, just because your email address doesn’t end in .gov, you are still responsible for abiding by the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

As I mentioned earlier, when wrongdoing occurs in emergency shelters, the response from shelter staff typically involves identifying the offender and discharging him for a certain period of time. As you might imagine, depriving a homeless person of indoor shelter or jeopardizing his access to indoor shelter causes him significant psychological harm. It also increases his risk of significant physical harm (i.e. exposure to the elements). In my experience, emergency shelter staff-members are fully aware that street homelessness can be harmful, traumatic, and life-threatening — in the same way that an Emergency Room physician is fully aware that the patients in the lobby need critical care.

When your workplace has the word “emergency” in its name, you know that what you’re doing is very serious. For that reason, a person with a traumatic or life-threatening injury would not be turned away from the ER. Yet emergency shelters continue to punish homeless people for rule violations, wrongdoing, or simply misbehavior by depriving them of access to shelter, or jeopardizing it.

When we consider these things together, what we have is the convergence of three important variables:

  1. we have individuals acting in an official capacity on behalf of the City of Philadelphia’s mission to make homelessness rare, brief, and nonrecurring;
  2. we have these same individuals causing psychological harm and increasing the risk of physical harm by making the decision to deprive a homeless person of his access to shelter;
  3. we have this decision being made explicitly and intentionally as a form of punishment for wrongdoing that the individual has committed or allegedly committed.

According to the criteria listed in the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the combination of these three things reasonably qualifies as torture.

This assessment can be challenged on two different grounds:

  1. one might say that homelessness in the United States is a humanitarian emergency — and, in response to emergency situations, certain otherwise unusual methods of maintaining social order are necessary and justified;
  2. one might say that discharge from shelter — even directly to the streets — does not necessarily violate local, state, or federal law, and therefore is a “lawful sanction” under the Convention.

However, Article 2, Section 2, of the Convention explicitly states that: “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”  “Emergency” does not mean “anything goes.”

In addition, one would hope that in a democratic society whose government has ratified the Universal Declaration of Human Rights — which itself prohibits torture — we would take a cautious approach to any actions that might qualify as torture. One would hope that such actions would be preemptively excluded from consideration as lawful sanctions precisely because of this ambiguity.

Even if we decide that discharging a homeless person from emergency shelter as punishment for wrongdoing is not torture, I defy you to say it is anything other than cruel, inhuman, or degrading.

In fact, Article 16 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment prohibits this kind of behavior as well. It states:

“Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”

Now, let’s say we decide that discharging a homeless person from emergency shelter as punishment for wrongdoing is not torture nor cruel, inhuman, or degrading treatment or punishment. Let’s say we follow the example of some shelter staff-members and justify the practice in terms of “shelter safety,” “social order,” etc. After all, when the nature of wrongdoing in shelter escalates to the level of serious threats, brandishing a weapon, or even physical violence, it may be necessary to remove the offender from the building in order to reestablish safety.

Nevertheless, at the most basic level, the normalization of discharge from shelter as a punishment for wrongdoing represents a gross failure in homeless services.

If we are in the business of providing shelter, we are failing if our only response, our best response, or our kneejerk response to wrongdoing is to deprive vulnerable people of shelter. We cannot rightfully call ourselves homeless services providers if we regularly take those services away from people who are homeless.

With that in mind, I am calling for an independent review of emergency shelter disciplinary protocols in Philadelphia, with special attention to the practice of discharge from shelter as a form of punishment. As I have said before: “emergency” does not mean “anything goes”— if we cannot provide shelter in a way that upholds human rights, then we have a serious problem.

Editor’s note: The City of Philadelphia’s Office of Homeless Services responded to this column, stating that it misrepresents the policies and practices of Philadelphia’s city-funded shelters. Here is its response:

“The City’s Office of Homeless Services does not allow participant discharge as punishment. Discharge is only allowable based real threats to the health and safety of other participants and/or staff on site. More often than not, it is acts of actual physical violence. This policy is enforced through strict monitoring and compliance, provider training, and technical assistance. It is supported by a robust participant appeals process augmented by a call line through which participants can make anonymous complaints.

“As an additional failsafe, the Homeless Advocacy Project, an independent, nonprofit law firm, provides legal representation to people experiencing homelessness and acts as a watchdog. If abuses such as those described by Mr. Huff take place, we urge participants and community members to use these mechanisms immediately to report them so we can address them. We should note that the City is only able to regulate the discharge practices of the shelters we fund, about 85% of City’s beds. Private shelters are not held to the same high standards of participant protections.

“Finally, while it is absolutely true that there are not enough beds or housing units to meet the need of all those experiencing homelessness, we cannot allow the health and safety of many in a given site to be threatened by one person who is violent. This is a terrible situation and one we take every opportunity to avoid.”


Office of Homeless Services

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