Justices uphold laws targeting homelessness with criminal penalties

OPINION ANALYSIS

The Supreme Court on Friday upheld ordinances in a southwest Oregon city that prohibit people who are homeless from using blankets, pillows, or cardboard boxes for protection from the elements while sleeping within the city limits. By a vote of 6-3, the justices agreed with the city, Grants Pass, that the ordinances simply bar camping on public property by everyone and do not violate the Constitution’s ban on cruel and unusual punishment.

Writing for the majority, Justice Neil Gorsuch contended that the Eighth Amendment, which bans cruel and unusual punishment, “serves many important functions, but it does not authorize federal judges” to “dictate this Nation’s homelessness policy.” Instead, he suggested, such a task should fall to the American people.

Justice Sonia Sotomayor dissented, in an opinion joined by Justices Elena Kagan and Ketanji Brown Jackson. She argued that the majority’s ruling “focuses almost exclusively on the needs of local government and leaves the most vulnerable in our society with an impossible choice: Either stay awake or be arrested.”

Friday’s decision was a major ruling on homelessness that is likely to have an effect well beyond Grants Pass. According to the U.S. Department of Housing and Urban Development, more than 600,000 people were homeless in the United States on a single night in 2023. In response to the increase in the number of people who are homeless, other state and local governments have passed similar bans on “camping” in recent years.

Grants Pass, a city with just under 40,000 people, has as many as 600 people experiencing homelessness on any given night. In 2013, the city decided to increase enforcement of existing ordinances that bar the use of blankets, pillows, and cardboard boxes while sleeping within the city.

Violators face steep fines: $295, which increases to $537.60 if it is not paid. When individuals receive two citations, police in Grants Pass can issue an order banning them from city property; anyone who violates such an order can be convicted on criminal trespass charges, which carry penalties of up to 30 days in jail and a $1,250 fine.

In 2018, John Logan and Gloria Johnson, both of whom have been homeless in Grants Pass, challenged the constitutionality of the city’s ordinances. A federal district court agreed with them and barred the city from enforcing the ordinances at night and under some circumstances during the day.

The city appealed to the U.S. Court of Appeals for the 9th Circuit, which upheld the lower court’s ruling. It relied on its 2018 decision in Martin v. City of Boise, in which it held that the Eighth Amendment’s ban on cruel and unusual punishment bars the imposition of criminal penalties for sitting and sleeping outside by people experiencing homelessness who do not have access to shelter.

On Friday, the Supreme Court reversed. In his opinion for the court, Gorsuch stressed that the Eighth Amendment’s ban on cruel and unusual punishment has generally applied only to methods of punishment, rather than to whether the government can criminalize particular conduct. And the fines and jail sentences at issue in this case do not, he insisted, “qualify as cruel and unusual.”

Instead, he continued, the challengers point to the Supreme Court’s 1962 decision in Robinson v. California, holding that the Eighth Amendment bars a state from making it a crime simply to be a drug addict. But the kinds of public camping ordinances at issue in this case bear no resemblance to the state law in Robinson, Gorsuch wrote, because they criminalize camping on public property rather than a person’s status.

And although the 9th Circuit’s decision in Martin may have been “well-intended,” Gorsuch observed, it has spawned a variety of problems for cities in the West. For example, the requirement that cities to allow public camping by individuals who are “involuntarily” homeless, Gorsuch said, creates questions and uncertainty for city officials and police officers. Moreover, he noted, some cities have indicated that the ruling “has made it more difficult, not less, to help the homeless accept shelter off city streets.”

Gorsuch acknowledged that homelessness is a “complex” issue and that, in trying to address it, “people will disagree over which policy responses are best” and “may experiment with one set of approaches only to find later another set works better.” “But in our democracy,” he concluded, “that is their right.”

In her dissent, Sotomayor agreed that “[h]omelessness in America is a complex and heartbreaking crisis.” But in her view, the Constitution “prohibits punishing homelessness by criminalizing sleeping outside when an individual has nowhere else to go.”

Sotomayor wrote that she “remain[ed] hopeful that someday in the near future, this Court will play its role in safeguarding constitutional liberties for the most vulnerable among us,” but that, in her view, the court “today abdicates that role.”

This article was originally published at Howe on the Court.