Stay awake or get arrested

By Clare Pastore, University of Southern California | –

(The Conversation) – The Supreme Court has ruled that the Eighth Amendment to the U.S. Constitution does not prohibit cities from criminalizing sleeping outdoors.

The case, City of Grants Pass v. Johnson, began when a small Oregon town with only one homeless shelter began enforcing a local anti-camping law that prohibited people from sleeping in public using a blanket or other rudimentary protection against the elements—even if they had nowhere else to go.

The court was faced with the following question: Is it unconstitutional to punish homeless people for performing activities necessary for survival, such as sleeping, in public when there is no opportunity to perform these acts in private?

In a 6-3 decision written by Justice Neil Gorsuch, the court said no. It rejected the claim that criminalizing sleeping in public by people with nowhere to go violates the constitutional ban on cruel and unusual punishment. In my view, the decision – which I consider disappointing but not surprising – will not lead to a reduction in homelessness and will certainly lead to further litigation.

As a specialist in poverty law, civil rights, and access to justice, and with many years of litigation experience in this area, I know that homelessness in the United States is a result of poverty, not crime, and that criminalizing homeless people does nothing to solve the problem.

“Criminalization” by Juan Cole, Digital, Dream/Dreamworld v 3, PS Express, 2024..

The Grants Pass case

Grants Pass v. Johnson sparked a years-long dispute over how far cities can go to prevent homeless people from settling within their borders and whether and when criminal penalties are permissible for acts such as sleeping in public.

In a 2019 case, Martin v. City of Boise, the 9th U.S. Circuit Court of Appeals ruled that the Cruel and Unusual Punishment Clause of the Eighth Amendment prohibits criminalizing sleeping in public when a person does not have a private place to sleep. The decision was based on a 1962 Supreme Court case, Robinson v. California, which found it unconstitutional to criminalize drug addiction. Robinson and a subsequent case, Powell v. Texas, represent the distinction between status that cannot be constitutionally punished and conduct that can be punished.

In the Grants Pass ruling, the 9th Circuit went a step further than the Boise case, ruling that the Constitution also prohibits criminalizing public sleeping with rudimentary shelter from the elements. The decision was controversial: the justices disagreed on whether the camping ban regulated the behavior or status of homelessness that inevitably leads to sleeping outside when there is no alternative.

Grants Pass urged the Supreme Court to abandon the Robinson precedent and its successor as “dead and misguided,” arguing that the Eighth Amendment prohibits only certain cruel methods of punishment, not fines and prison sentences.

The homeless plaintiffs did not challenge the reasonableness of regulating the time and place of sleeping outdoors, nor the City’s ability to limit the size or locations of homeless groups or encampments, nor the legality of punishing those who insist on staying in public when shelter is available.

However, they argued that comprehensive anti-camping laws would impose too harsh penalties for “completely harmless, generally unavoidable behavior” and that punishing people for “simply being outside without access to shelter” would not reduce that behavior.

In its decision today, the court rejected the city’s request to overturn the 1962 Robinson decision and strike down the ban on status criminalization, but denied that homelessness is a status. Instead, the court agreed with the city that camping or sleeping in public are activities, not statuses, despite plaintiffs’ evidence that, for homeless people, there is no difference between criminalizing “homelessness” and criminalizing “sleeping in public.”

The decision contains surprisingly little analysis of the Eighth Amendment to the U.S. Constitution. It does not address the plaintiffs’ arguments that criminalizing sleeping constitutes a disproportionate punishment or imposes a punishment without a legitimate deterrent or rehabilitative purpose.

Instead, the court kept returning to the idea that the 9th Circuit’s decision required judges to make impermissible policy decisions about how to respond to homelessness. The court also cited extensively amicus curiae briefs from cities and others discussing the difficulties of addressing homelessness. Significantly, however, neither those briefs nor the court’s decision cite any evidence that criminalization reduces homelessness in any way.

In a strong dissenting opinion that begins, “Sleep is a biological necessity, not a crime,” Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, quoted extensively from the case’s records. The dissenting opinion included some shocking statements from the Grants Pass City Council, such as, “Perhaps (the homeless) are not hungry or cold enough … to change their behavior.”

Sotomayor noted that time, place, and behavioral restrictions on sleeping in public are perfectly permissible under the Ninth Circuit’s analysis, and that the inevitable boundary-drawing issues cited by the majority are a normal part of constitutional interpretation. She also noted that the majority’s claim that the Ninth Circuit’s rule was unworkable has been refuted by Oregon’s own actions: In 2021, the state legislature enacted the Martin v. Boise ruling into law.

A national crisis

Homelessness is a massive problem in the United States. During the COVID-19 pandemic, the number of homeless people remained stable largely due to eviction moratoriums and the temporary availability of expanded public benefits, but it has risen sharply since 2022.

Academics and policymakers have spent many years studying the causes of homelessness, including stagnant wages, declining social services, inadequate treatment for mental illness and addiction, and the politics of location of affordable housing. But there is little disagreement that a simple mismatch between the enormous need for affordable housing and the limited supply is a central cause.

Tough action against the homeless

Rising homelessness, particularly its visible manifestations such as tent encampments, has frustrated urban residents, businesses and policymakers across the U.S. and led to a rise in anti-homelessness policies. Reports from the National Homelessness Law Center in 2019 and 2021 have counted hundreds of laws prohibiting camping, sleeping, sitting, lying, begging and loitering in public.

Under Presidents Barack Obama and Joe Biden, the federal government has emphasized that criminal penalties are rarely useful, instead emphasizing alternatives such as supportive services, specialized courts and coordinated care systems, and increased housing supply.

Some cities have achieved considerable success with these measures. But not all communities are on board.

Displacing people from the city

I expect this ruling will prompt some jurisdictions to continue or strengthen their homeless policies, despite the fact that there is no evidence that such policies reduce homelessness. Such laws could well shift the problem to other cities, as Grants Pass officials openly admitted they intended to do.

The decision will likely put even more pressure on jurisdictions that do not want to criminalize homelessness, such as Los Angeles, whose mayor, Karen Bass, condemned the ruling. While this ruling settles Eighth Amendment claims against sleeping bans, the legal battles over homeless policy are undoubtedly far from over.

This is an updated version of an article originally published on April 17, 2024.

Clare Pastore, Professor of Legal Practice, University of Southern California

This article is republished from The Conversation under a Creative Commons license. Read the original article.