Last year, the West Virginia House of Delegates introduced a radical proposal for responding to homelessness within the state: privately enforceable residency restrictions. As introduced, the restrictions prohibited homeless individuals from sheltering themselves, from being sheltered by others, or from receiving food or care within 1,500 feet of a school or childcare center. This prohibition was to operate statewide, transforming an issue that historically has been considered hyper-local into a subject of state concern. Moreover, the proposed bill established a private right of action for enforcement, legislating around the possibility of recalcitrant municipal governments declining to abide by the residency restrictions.
The structure of the West Virginia bill is unique in the context of responding to homelessness, a burgeoning national crisis. In this respect, the bill illustrates how future debates about homelessness policy may be shifting away from the traditional thinking that homelessness is a local issue best addressed by local governmental actors. However, the defining features of the West Virginia bill are not themselves novel. Instead, the bill may best be seen as an extension of three emergent trends in state governance to a novel subject matter.
This Essay thus explores three frontiers of homelessness law and policy that are implicated by the West Virginia bill. First, it draws upon lessons learned from sex offender residency restrictions to demonstrate the bill’s potential for unintended, and undesirable, consequences in communities with sizable homeless populations. Second, it situates the use of state power to regulate a traditionally local concern amidst a recent trend in aggressive state–local preemption to question the wisdom and propriety of statewide responses to homelessness. Third, it compares the deployment of private enforcement mechanisms to similar legislation in other contexts—including Texas’s fetal heartbeat bill—to highlight the pernicious and antidemocratic possibilities of marshaling private disdain for homeless residents. Throughout, the Essay explores how these features of the West Virginia bill expose the shifting thinking about the phenomenon of homelessness more broadly.
Ben A. McJunkin, Homeless Residency Restrictions, 125 W. Va. L. Rev. 407 (2023).
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