Stay awake or be 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 in the open.

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

The Court considered this question: Is it unconstitutional to punish homeless people for doing things necessary for their survival, such as sleeping, in public when there is no possibility of doing 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 for those with nowhere else to go violates the constitutional ban on cruel and unusual punishment. In my view, the decision — which I consider disappointing but not surprising — will lead to no reduction in homelessness and will certainly lead to more litigation.

As a specialist in poverty law, civil rights, and access to justice, having litigated numerous cases in this area, I know that homelessness in the United States is a function of poverty, and 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 Affair

Grants Pass v. Johnson culminated years of struggle over how far cities can go to discourage homeless people from residing within their borders, and whether and when criminal penalties for actions such as sleeping in public are allowed.

In a 2019 case, Martin v. City of Boise, the 9th U.S. Circuit Court of Appeals held that the Cruel and Unusual Punishment Clause of the Eighth Amendment prohibits 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 was unconstitutional to criminalize being a drug addict. Robinson and a later case, Powell v. Texas, came to distinguish between status, which cannot be constitutionally punished, and conduct, which can.

In Grants Pass, the 9th Circuit Court of Appeals went further than Boise and held that the Constitution also prohibits criminalizing sleeping rough with rudimentary protection from the elements. The decision was controversial: The justices disagreed on whether the camping ban regulated conduct or homelessness, which inevitably leads to sleeping rough when there is no other option.

Grants Pass urged the Supreme Court to abandon the Robinson precedent and its successors, which it considers “moribund and misguided.” She argued that the Eighth Amendment only prohibits certain cruel methods of punishment, which do not include fines and prison sentences.

The homeless plaintiffs did not challenge reasonable regulation of the time and place of sleeping outdoors, 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 argued that broad anti-camping laws imposed too harsh penalties for “entirely innocent and universally unavoidable behavior” and that punishing people for “simply living outdoors without access to shelter” would not reduce the activity.

In today's ruling, the court rejected the city's invitation to overturn the 1962 Robinson decision and eliminate the ban on criminalizing the status, but denied that being homeless is a status . Instead, the court agreed with the city that camping or sleeping in public are activities and not statuses, despite the plaintiffs' testimony that for the homeless, there is no difference between criminalizing ” being homeless” and criminalizing “sleeping in public.”

The decision is surprisingly unsupported by an Eighth Amendment analysis. It refuses to consider the plaintiffs’ arguments that criminalizing sleep imposes a disproportionate punishment or imposes punishment without a legitimate purpose of deterrence or rehabilitation.

Instead, the court repeatedly returned to the idea that the 9th Circuit’s decision required judges to make unacceptable policy decisions about how to respond to homelessness. The court also cited extensively friend-of-the-court briefs from cities and others discussing the challenges of addressing homelessness. Significantly, however, neither those briefs nor the court’s decision cite evidence that criminalization in any way reduces homelessness.

In a strong dissent that began, “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 record. The dissent included shocking statements from the Grants Pass City Council, such as “Maybe [the homeless people] are not hungry enough or cold enough… to change their behavior.

Sotomayor noted that restrictions on the time, place, and manner of sleeping in public are perfectly permissible under the Ninth Circuit’s analysis, and that the inevitable boundary issues the majority focuses on are a normal part of constitutional interpretation. She also observed that the majority’s claim that the Ninth Circuit’s rule is unenforceable has been belied by Oregon’s own actions: In 2021, the state legislature codified Martin v. Boise.

A national crisis

The number of people experiencing homelessness has remained stable during the COVID-19 pandemic, largely because of eviction moratoriums and the temporary availability of expanded public benefits, but it has increased sharply since 2022.

Researchers and policymakers have spent many years analyzing the causes of homelessness. These include stagnant wages, declining social benefits, inadequate treatment of mental illnesses and addictions, and policies to implement affordable housing. There is no doubt, however, that one of the main causes is the mismatch between the considerable need for affordable housing and the limited supply.

Crackdown on homelessness

The increase in homelessness, particularly its visible manifestations such as tent encampments, has frustrated city residents, businesses and policymakers across the United States and led to increased measures of homelessness. crackdown on the homeless. Reports from the National Homelessness Law Center in 2019 and 2021 documented hundreds of laws restricting camping, sleeping, sitting, lying down, panhandling and loitering in public places.

Under the presidencies of Barack Obama and Joe Biden, the federal government argued that criminal sanctions were rarely helpful. Instead, he emphasized alternatives, such as support services, specialized courts and coordinated care systems, as well as increased housing supply.

Some cities have had remarkable success with these measures. But not all communities are in favor of this measure.

Push people out of town

I expect this decision will prompt some jurisdictions to continue or intensify crackdowns on the homeless, despite the complete absence of evidence that such measures reduce the number of homeless people. What such laws might do is spread the problem to other cities, as Grants Pass officials have candidly admitted they seek to do.

The move will likely increase pressure on jurisdictions that choose not to criminalize the homeless, such as Los Angeles, whose mayor, Karen Bass, condemned the decision. While this decision resolves Eighth Amendment claims against the sleeping ban, the litigation surrounding the homeless policy may be far from over.

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

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

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