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This article is part of The Rooftop, a blog and multimedia series from �鶹������ý’s Future of Land and Housing program. Featuring insights from experts across diverse fields, the series is a home for bold ideas to improve housing in the United States and globally.

A central question I pose in a recent is, “What would the world look like if the U.S. respected the agency of the unhoused?” The answer is that it would probably have a lot less criminal law.��

Every day, individuals experiencing homelessness must make difficult, life-defining choices about how to build a life worth living amid unimaginable inequality. Many of the best decisions they can make, however, are declared off-limits due to criminal laws that currently plague the unhoused. Choices that many of us take for granted—about where to live; how to obtain food, money, or work; how to protect against physical and sexual violence; and how to build and maintain a sense of belonging within their community—can easily lead an unhoused person afoul of the criminal law. In at least one area of criminal law scholarship, the realm of sex crimes, individual decision-making, known as “agency,” is valued so highly that criminal law is expected to accommodate it.��

If the agency of unhoused individuals to define and shape their lives under conditions of unimaginable poverty was imbued with the same normative power as the agency of people to own and exercise their sexuality, many of the life-defining, strategic decisions of unhoused individuals would be legally insulated, rather than criminalized.

Homelessness is at the highest levels ever recorded.�� According to the , on a single night in 2025, nearly 750,000 individuals were without a consistent nighttime residence. Among that unhoused population, about 36 percent were unsheltered, meaning they were living in places not meant for human habitation, such as living outside, on the street, or in a vehicle. Worse, the HUD Point-in-Time count is widely believed to be an undercount of the actual number of people experiencing homelessness. cite estimates of the true scale of homelessness ranging from 2.5 million to 3.5 million individuals annually.��

U.S. states and cities increasingly respond to homelessness with aggressive criminalization. In any major U.S. city, it may be a crime for those without private space to sit, lie, stand, travel, bother others, ask for food or money, live in a vehicle, accumulate property, smell bad, change clothes, or use the bathroom. In 2024, the Supreme Court decided in that the criminalization of such acts, even when involuntary and unavoidable, does not offend the Constitution. In the short time since the Grants Pass decision, an explosive increase in criminal laws targeting homelessness.

These carceral responses massively constrain the agency of America’s unhoused, and particularly its unsheltered, populations. Without shelter, these individuals use their agency to navigate extreme constraints to secure necessities such as food, money, clothing, and healthcare, and to build relationships without the protections a home offers. However, many optimal decisions are criminalized by laws meant to maintain public “order” or paternalistically protect the unhoused.

In feminist legal studies, “agency” refers to individual decision-making within inequality, supporting self-definition and self-direction. , self-definition is how one perceives one’s goals and values, while self-direction involves setting and pursuing specific goals. Simply put, agency is the ability to make key decisions about shaping one’s life.

Extending agency theory to the experiences of unhoused individuals reveals myriad areas where the criminal law overreaches and infringes on decisionmaking.��

First, consider homeless encampments. Many unhoused individuals over using faith-based or government-provided shelter services. This choice is deeply personal, influenced by considerations of physical safety, health, accessibility, the accumulation of personal property, and even the maintenance of interpersonal relationships. By establishing and occupying encampments, unhoused individuals exercise agency that resists the diminishment of their personhood and the systemic drivers of further inequality. Yet prohibit self-sheltering in encampments through aggressive criminalization. Criminalizing encampments denies agency, preventing unhoused individuals from making rational choices about where to build a life within the constraints of extreme poverty.

Second, consider laws against begging and panhandling. Accounts of those who have tried panhandling reveal that it can be more profitable than alternative options to earn money, particularly low-wage, menial jobs. experimented with panhandling and reported making $11.10 per hour, nearly 25% more than the state’s minimum wage. Moreover, the choice to panhandle involves complicated considerations of self-image and self-expression. I For some panhandlers, begging is their occupation, and they find it more in line with their dignity than a low-wage job. However, panhandling is frequently criminalized by local governments who cite practical considerations—e.g., blocking walkways—as cover for blanket prohibitions that are more likely driven by stigma and a desire for order.

Progressive property scholarship offers a way to consider how the law can respect the agency of those living in homeless encampments. The urges lawmakers to consider the lived human experience, not just abstract costs and benefits, when defining property allocation laws. Understanding the human values behind property helps us find more nuanced legal solutions. For example, , a law professor at American University, suggests that property law should include a “new necessity” defense, which prioritizes the housing needs of homeless individuals over the public’s access to public space. By considering the needs of the unhoused, who lack private space, Rosser argues that property law should protect homeless encampments from being criminalized.

Similarly, if the law centered individual agency in considering panhandling laws, many governments’ restrictions would be considered unconstitutional. Under , prohibitions on panhandling should be considered content-based restrictions on speech. Many panhandling laws target only specific speech, such as asking for money, while excluding similar forms of expression. Even if jurisdictions claim their laws are not based on content, they often do not offer reasonable alternatives for expressing need, a constitutional requirement. For unhoused people, a good alternative to panhandling should be a place that’s equally profitable and engaging with the public. Essentially, if we truly valued the agency of the unhoused, panhandling laws would be less restrictive.

Criminal laws will always impinge upon individual agency to some degree. But that impingement is most justified where the laws in question protect others from severe forms of harm. The laws currently plaguing our unhoused neighbors are different. They infringe on individual agency under the guise of safeguarding more vague concepts, such as public order, public decency, or, in certain cases, paternalistically shielding the unhoused from their own choices. When the law justifies this, agency’s right to be respected is considerably stronger.

Elevating the agency of the unhoused to a value worth protecting legally shows how readily many of the criminal laws impacting the unhoused could be dismantled.

Arguments sounding in agency could invite us to reconsider laws against loitering and disorderly conduct, which seek to banish the unhoused from public life. They could justify some public drug use, when it is used to stay hypervigilant against violence and theft or as a substitute for unavailable medical care. And they invite us to reimagine how the criminal law responds to the basic humanity of our least-well-off friends and neighbors. Treating these agentic choices as valuable in their own right opens the realm of law to a new world of possibility.

Editor’s note: The views expressed in the articles on The Rooftop are those of the authors alone and do not necessarily reflect the opinions or policy positions of �鶹������ý.��