The U.S. Supreme Court has ruled that cities can enforce bans on outdoor sleeping for the homeless, a decision that comes as homelessness rates continue to rise across the nation. In a 6-3 decision, the justices sided with the city of Grants Pass, Oregon, determining that it is not cruel and unusual punishment to fine homeless individuals for sleeping on public property.
Justice Neil Gorsuch, writing for the majority, acknowledged the complexity of homelessness, noting that its causes are varied and that public policy responses must be equally multifaceted. Grants Pass officials have defended their approach as a necessary measure to address the growing problem of encampments, despite the city’s lack of sufficient shelter space. The city has been imposing fines of nearly $300, escalating to criminal charges if unpaid. Lower courts had previously ruled this practice illegal.
In her dissent, Justice Sonia Sotomayor argued that the decision forces the most vulnerable members of society into an untenable position: either stay awake or face arrest. The ruling potentially paves the way for municipalities nationwide to adopt similar ordinances.
The National Homelessness Law Center criticized the decision as unjust, urging elected officials to create laws that protect the homeless and increase funding for housing.
The case, City of Grants Pass v. Johnson, began when the small Oregon city, which has only one homeless shelter, started enforcing a local anti-camping law against people sleeping in public with any form of rudimentary protection against the elements. The court had to decide whether it is unconstitutional to punish homeless people for performing necessary survival activities in public when no private alternatives are available.
This case raises significant questions about the scope of the Constitution’s cruel and unusual punishment clause and the limits of cities’ power to penalize involuntary conduct. Homelessness in the U.S. is largely a function of poverty and is strongly correlated with racial inequality. If cities are allowed to continue criminalizing inevitable behaviors, these disparities are likely to increase.
Homelessness in the United States is a massive problem. The number of people without homes remained steady during the COVID-19 pandemic due to eviction moratoriums and expanded public benefits, but it has risen sharply since 2022. The latest federal data shows 653,000 people were homeless on a single night in 2023, a 12% increase from 2022 and the highest number since counts began in 2007. Nearly 300,000 of these individuals were living on the street or in parks.
The survey also highlights that not all homelessness is the same. About 22% of homeless people are chronically homeless, while most experience temporary or episodic lack of shelter. A 2021 study found that 53% of homeless shelter residents and nearly half of unsheltered people were employed.
Scholars and policymakers have long analyzed the causes of homelessness, including wage stagnation, shrinking public benefits, inadequate treatment for mental illness and addiction, and the politics of siting affordable housing. However, there is broad agreement that the mismatch between the need for affordable housing and its limited supply is a central cause.
Homelessness in the U.S. is not race-neutral. Black Americans, who represent 13% of the population, comprise 21% of people living in poverty and 37% of those experiencing homelessness. The largest percentage increase in homelessness for any racial group in 2023 was 40% among Asians and Asian-Americans. The largest numerical increase was among people identifying as Latin(a)(o)(x), with nearly 40,000 more homeless in 2023 than in 2022.
Criminalizing homelessness has a disparate racial effect. A 2020 study in Austin, Texas, showed that Black homeless people were 10 times more likely than white homeless people to be cited by police for camping on public property. According to a recent report from the Southern Poverty Law Center, 1 in 8 Atlanta city jail bookings in 2022 were of people experiencing homelessness. The criminalization of homelessness has roots in historical use of vagrancy and loitering laws against Black Americans dating back to the 19th century.
Increasing homelessness, especially its visible manifestations such as tent encampments, has frustrated city residents, businesses, and policymakers across the U.S., leading to more crackdowns against homeless people. Reports from the National Homelessness Law Center in 2019 and 2021 have tallied hundreds of laws restricting camping, sleeping, sitting, lying down, panhandling, and loitering in public. Since 2022, Texas, Tennessee, and Missouri have passed statewide bans on camping on public property, with Tennessee making it a felony. Georgia has enacted a law requiring localities to enforce public camping bans. Even some cities led by Democrats, including San Diego and Portland, Oregon, have established tougher anti-camping regulations.
Under Presidents Barack Obama and Joe Biden, the federal government has emphasized alternatives to criminal sanctions, such as supportive services, specialty courts, and coordinated systems of care, along with increased housing supply. Some cities have had striking success with these measures, but not all communities are on board.
The Grants Pass case culminates years of struggle over how far cities can go to discourage homeless people from residing within their borders and whether criminal sanctions for actions such as sleeping in public are permissible. In a 2019 case, Martin v. City of Boise, the 9th U.S. Circuit Court of Appeals held that the Eighth Amendment’s cruel and unusual punishment clause forbids criminalizing sleeping in public when a person has no private place to sleep. The decision was based on a 1962 Supreme Court case, Robinson v. California, which held that it is unconstitutional to criminalize being a drug addict. Robinson and a subsequent case, Powell v. Texas, have come to stand for distinguishing between status, which cannot constitutionally be punished, and conduct, which can.
In the Grants Pass ruling, the 9th Circuit went further than it had in the Boise case, holding that the Constitution also banned criminalizing the act of public sleeping with rudimentary protection from the elements. The decision was contentious, with judges disagreeing over whether the anti-camping ban regulated conduct or the status of being homeless, which inevitably leads to sleeping outside when there is no alternative.
Grants Pass is urging the Supreme Court to abandon the Robinson precedent and its progeny as “moribund and misguided.” It argues that the Eighth Amendment forbids only certain cruel methods of punishment, which do not include fines and jail terms.
The homeless plaintiffs argue that they do not challenge reasonable regulation of the time and place of outdoor sleeping, the city’s ability to limit the size or location of homeless groups or encampments, or the legitimacy of punishing those who insist on remaining in public when shelter is available. But they argue that broad anti-camping laws inflict overly harsh punishments for “wholly innocent, universally unavoidable behavior” and that punishing people for “simply existing outside without access to shelter” will not reduce this activity.
They contend that criminalizing sleeping in public when there is no alternative violates the Eighth Amendment in three ways: by criminalizing the “status” of homelessness, by imposing disproportionate punishment on innocent and unavoidable acts, and by imposing punishment without a legitimate deterrent or rehabilitative goal.
The case has attracted dozens of amicus briefs, including from numerous cities and counties that support Grants Pass. They assert that the 9th Circuit’s recent decisions have worsened homelessness, stymied law enforcement, and left jurisdictions without clear guidelines for preserving public order and safety.
On the other hand, the states of Maryland, Illinois, Massachusetts, Minnesota, New York, and Vermont filed a brief urging the Court to uphold the 9th Circuit’s ruling, arguing that local governments retain ample tools to address homelessness and that criminalizing tends to worsen rather than alleviate the problem. A brief from 165 former local elected officials agrees. Service providers, social scientists, and professional organizations such as the American Psychiatric Association filed briefs noting that criminalization increases barriers to education, employment, and eventual recovery; erodes community trust; and can force people back into abusive situations. They also highlight research showing the effectiveness of a nonpunitive “housing first” model.
The current Supreme Court is generally extremely sympathetic to law enforcement, but even its conservative members may balk at allowing a city to criminalize inevitable acts by homeless people. Doing so could spark competition among cities to create the most punitive regime in hopes of effectively banishing homeless residents.
However, at least some justices may sympathize with the city’s argument that upholding the 9th Circuit’s ruling “logically would immunize numerous other purportedly involuntary acts from prosecution, such as drug use by addicts, public intoxication by alcoholics, and possession of child pornography by pedophiles.” However the court rules, this case will likely affect the health and welfare of thousands of people experiencing homelessness in cities across the U.S.
Source: Gray DC, The Conversation
