The Supreme Court has ruled that the Eighth Amendment to the U.S. Constitution doesn’t prohibit cities from criminalizing sleeping outdoors.

City of Grants Pass v. Johnson began when a small town in Oregon with only a homeless shelter began enforcing a neighborhood anti-camping law that prohibited people from sleeping in public with a blanket or other rudimentary protection from the weather – even in the event that they had nowhere else to go.

The court was faced with the next query: Is it unconstitutional to punish homeless people for performing activities obligatory for survival, similar to sleeping, in public when there isn’t a opportunity to perform these acts in private?

In a 6-3 decision by Justice Neil Gorsuch, the Court disagreed. It rejected the claim that criminalizing sleeping in public by individuals with nowhere to go violates the The constitutional prohibition of cruel and weird punishmentIn my view, the choice – which I consider disappointing but not surprising – won’t reduce homelessness and will definitely result in further litigation.

As a specialist for Poverty law, civil rights and access to justice As a litigant on this area, I do know that homelessness within the United States is a consequence of poverty, not crime, and that criminalizing homelessness does nothing to resolve the issue.

The Grants Pass case

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

In a case from 2019 Martin vs. the City of BoiseThe ninth U.S. Circuit Court of Appeals ruled that the Cruel and Unusual Punishment Clause of the Eighth Amendment prohibits criminalizing sleeping in public when an individual doesn’t have a non-public place to sleep. The decision was based on a 1962 Supreme Court case, Robinson v. Californiawhich found it unconstitutional to criminalize drug addiction. Robinson and a subsequent case, Powell vs. Texasrepresent the excellence between a standing that can not be constitutionally punished and behavior that might be punished.

In Grants Pass, the ninth Circuit went a step further than in Boise and ruled that the Constitution also prohibits the criminalization of public sleeping. with rudimentary protection from the weatherThe decision was controversial: the judges disagreed on whether the camping ban regulates the behavior or status of homelessness that inevitably results in sleeping outside when there isn’t a alternative.

Grants Pass urged the Supreme Court to desert 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 didn’t challenge the reasonableness of regulating the time and place of sleeping outdoors, nor the City's ability to limit the dimensions or locations of homeless groups or encampments, nor the legality of punishing those that insist on staying in public when shelter is obtainable.

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” wouldn’t reduce that behavior.

In its decision today, the court rejected the town's request to overturn the 1962 Robinson decision and strike down the ban on status criminalization, but denied that homelessness is a standing. Instead, the court agreed with the town that camping or sleeping in public are activities, not statuses, despite plaintiffs' evidence that, for homeless people, there isn’t a difference between criminalizing “homelessness” and criminalizing “sleeping in public.”

The decision accommodates surprisingly little evaluation of the Eighth Amendment to the U.S. Constitution. It doesn’t address the plaintiffs' arguments that criminalizing sleeping constitutes a disproportionate punishment or imposes a punishment without legitimate deterrent or rehabilitative goals.

Instead, the court kept returning to the concept that the ninth Circuit's decision required judges to make impermissible policy decisions about the way to reply to homelessness. The court also cited extensively amicus curiae briefs from cities and others discussing the difficulties of addressing homelessness. Significantly, nevertheless, neither those briefs nor the court's decision cite any evidence that criminalization reduces homelessness in any way.

In a powerful dissenting opinion starting “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, similar to “Perhaps [the homeless people] aren’t hungry or cold enough … to vary their behavior.”

Sotomayor noted that point, place, and behavioral restrictions on sleeping in public are perfectly permissible under the Ninth Circuit's evaluation, and that the inevitable boundary-drawing issues cited by the bulk are a traditional a part of constitutional interpretation. She also noted that almost all's claim that the Ninth Circuit's rule was unworkable has been contradicted by Oregon's own actions: In 2021, the state legislature converted the Martin v. Boise ruling into law.

A national crisis

Homelessness is an enormous problem within the United States. The variety of homeless people has remained largely stable through the COVID-19 pandemic, mainly as a result of Eviction moratoriums and the temporary availability of expanded public servicesHowever, since 2022 it has increased sharply.

Academics and policymakers have spent a few years analyzing the causes of homelessness, including stagnant wages, declining social services, inadequate treatment for mental illness and addiction, and the politics of location of reasonably priced housing. However, there’s little agreement that the easy mismatch between the large need for reasonably priced housing and the limited supply is a central cause.

Tough motion against the homeless

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

Under Presidents Barack Obama and Joe Biden, the federal government has claimed that criminal sanctions are rarely useful. Instead, it has emphasized alternativessimilar to supportive services, specialised courts and coordinated care systems, along with improved housing provision.

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

Displacing people from the town

I expect this ruling will prompt some jurisdictions to proceed or increase anti-homelessness policies, despite the dearth of evidence that such policies reduce homelessness. What such laws may do is shift the issue to other cities, as Grants Pass officials have openly admitted that they tried.

The decision is more likely to put much more pressure on jurisdictions that select to not criminalize homelessness, similar to Los Angeles, whose mayor Karen Bass condemned the decisionWhile this ruling resolves Eighth Amendment claims against sleeping bans, the legal battle over homeless policy is undoubtedly removed from over.

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

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