Ethical Arguments For and Against San Jose’s Proposed Three Strikes Law for the Unhoused

J.P. Best ’25, Alicia Nelson '26, and Natalya Salaices ’25 are undergraduate students and 2024-25 Hackworth Fellows at the Markkula Center for Applied Ethics at Santa Clara University. Views are their own.

On March 14, 2025, the San Jose City Council voted to pass Mayor Matt Mahan’s proposed budget for the 2025-2026 fiscal year. He proposed the “Responsibility to Shelter Initiative,” which would penalize homeless individuals who refuse shelter three times in the span of 18 months. As Hackworth Fellows at the Markkula Center for Applied Ethics at Santa Clara University, we present ethical arguments for and against the law.

JP Best: Accountability and a Defense of Mahan’s Law

Is the government of the United States required to provide its citizens with housing? Legally speaking, no. If it was the case that the government was required to provide housing to every citizen, homeless individuals could successfully sue the government on the basis that the government has failed in its duty to “provide housing.” For better or worse, this is not the case.

A more interesting question, perhaps, would be, “Can the government criminalize homelessness?” In the wake of the 2024 United States Supreme Court case, City of Grant’s Pass, Oregon, v. Johnson, the justices wrestled with this difficult question. While the decision of the court allows for laws prohibiting camping on public property, some cities have passed more modest legislation that avoid issues of criminalizing homelessness.

Matt Mahan’s “Responsibility to Shelter” initiative is an example of such modest legislation in the wake of an extreme court ruling. Critics of this law argue that this initiative criminalizes poverty and homelessness. However, this simply isn’t the case. Yes, it is true that this law would result in homeless people being arrested. However, the reason for the arrest is not because of their status as a homeless person but rather because of their refusal to accept shelter.

In the Grant’s Pass minority opinion, the dissent argues that anti-camping statutes and laws that prohibit sleeping in public criminalize homelessness because they punish actions that homeless people must take to survive (like sleeping). Let’s imagine the dissent in the Grant’s Pass case was adopted by the majority of the court.

In her dissent, Justice Sotomayor defended a previous holding in Martin v. Boise (2019) that holds that, “an ordinance violates the 8th Amendment insofar as it imposes criminal sanctions against homeless individuals for sleeping outdoors, on public property, when no alternative shelter is available to them…[O]ur holding does not cover individuals who do have access to adequate temporary shelter.” In other words, a law punishing a homeless person for choosing to live on public property, after they are presented with shelter, is constitutional and does not criminalize homelessness.

A key component of Sotomayor’s analysis is the question of whether or not homeless individuals have a choice. If a homeless person exercises a choice to refuse “adequate temporary shelter” (Sotomayor) then the city can punish that choice. Affirming people's dignity requires that we recognize that all people, housed or unhoused, are responsible for their decisions. To quote a formerly homeless person who spoke in favor of the law at the San Jose City Council meeting in March on the proposed legislation: “The most addictive drug is a lack of accountability.” The lack of accountability required of the homeless population is, quite literally, killing them. More than 200 people died on the streets of San Jose last year. It is more than reasonable, ethical, and legal (even under a progressive interpretation of the law) to punish people for choosing to live on public property when shelter is available.

Human Dignity and Direct Support: Natalya Salaices and Alicia Nelson Argue Against the Law

Although the law doesn’t explicitly say, “all homeless persons who refuse housing three times will be arrested,” are we expected to ignore the fact that this law and resulting arrests will disproportionately punish the very people the law claims to support by further criminalizing homelessness? This law is being used as a band-aid to solve the ongoing homelessness crisis while the real reasons why homelessness is caused, such as high housing costs or lost or reduced income from work, are not being addressed. 

We define dignity as the inherent worth and value of every human being and, on the basis of such dignity, everyone deserves respect and ethical treatment. This law toys with the dignity of a homeless person by putting them into the criminal justice system just to receive basic human needs. This law could potentially lead to a dark pattern that requires marginalized communities to enter the criminal justice system to acquire assistance.

Framing shelter as a condition for compliance transforms a social service into a coercive mechanism. We must reconsider whether we want our institutions to uphold dignity and justice for all or to continue the cycle of persons in marginalized communities entering into an ongoing merry-go-round of the criminal justice system.

Consider just one major difficulty that would follow from getting arrested under this law. Employment opportunities are essential to think about when regaining stability and getting out and staying out of homelessness. From an ethical standpoint, an arrest record will likely have the opposite effect and hinder one's opportunity to obtain a job. Effective solutions to the homelessness crisis should include helpful tools to join the workforce, to gain economic mobility, and to access easily—in other words, without having to be arrested—mental health resources. 

We are also struck by an odd juxtaposition. A utilitarian ethical analysis requires one to assess the likely benefits and likely harms for all stakeholders involved in a situation. As we think about the proposed law, we see more harms than benefits, especially when the benefit of being housed comes with the harm of having more people involved than necessary and having resources allotted towards enforcement. We could take an easier, and likely, more successful path: Providing direct cash assistance to people who are unhoused. The comprehensive University of California, San Francisco 2023 study of homelessness in California found that, “Seventy percent [of homeless persons] believed that a monthly rental subsidy of $300-$500 would have prevented their homelessness for a sustained period” (UCSF 6). This perspective from people who are closer to the problem—homeless persons themselves—is often more insightful than those who are detached from it. 

The city of San Jose's mission statement is “to provide quality public services, facilities, and opportunities that create, sustain, and enhance a safe, livable, and vibrant community for its diverse residents, businesses, and visitors.” The path of criminalization that would follow from this law raises ethical concerns on whether or not this law reflects the city's mission. Forcing the unhoused community into the criminal justice system to access basic human needs contradicts the city's goal of fostering a community that respects and upholds the dignity of all its residents, regardless of whether they have housing.

Conclusion

We all agree that this topic is complex, and there will be differing perspectives throughout San Jose on this. By trying to understand this topic more through an ethical and moral perspective, we all hope that the whole city upholds the dignity and responsibility of everyone to create a just solution to the crisis of homelessness in San Jose.