OPINION ANALYSIS

Justices uphold laws targeting homelessness with criminal penalties

This article was updated on June 28 at 5:46 p.m.

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.

The majority declined to extend Robinson to prohibit the enforcement of laws that (like the ordinances at issue in this case) do not criminalize an individual’s status but instead prohibit acts that the defendant “cannot help but undertake.” Otherwise, the challengers had suggested, the city would effectively be punishing for their status anyway.

The Supreme Court rejected a similar request to extend Robinson in 1968, Gorsuch explained. In Powell v. Texas, the court rebuffed a challenge by a defendant who had been convicted under a state law that made it a crime to be intoxicated in public. The defendant in that case had argued “that his drunkenness was an ‘involuntary’ byproduct of his status as an alcoholic.” “This case,” Gorsuch concluded, “is no different from Powell.”

Gorsuch also suggested that there are other protections available in the legal system for individuals experiencing homelessness who might otherwise be subject to the city’s ordinances. Among other things, he observed, an individual experiencing homelessness who does not have anywhere else to go may be able to assert a “necessity” defense, while an Oregon law restricts the power of the state’s cities to punish their homeless residents for sleeping in public.   

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.”

Justice Clarence Thomas filed a brief concurring opinion in which he voiced his belief that Robinson (and much of the court’s Eighth Amendment case law more broadly) was wrongly decided. Instead of considering the text and original meaning of the Eighth Amendment, he asserted, the court in Robinson looked at public opinion – which “is not an appropriate metric for interpreting the Cruel and Unusual Punishments Clause.”

Moreover, Thomas expressed doubt about whether the cruel and unusual punishments clause even applies to this case. Although individuals experiencing homelessness in Grants Pass can eventually be exposed to criminal penalties, he acknowledged, “the possibility that a civil fine turns into a criminal trespass charge is a remote one.” The challengers in this case, he wrote, “assert that they have been involuntarily homeless in Grants Pass for years, yet they have never received a park exclusion order, much less a criminal trespass charge.”

In her dissent, Sotomayor began by stressing the scope of the homelessness problem in America, calling it a “complex and heartbreaking crisis.” The problem stems, she explained, from a variety of “interconnected issues, including crippling debt and stagnant wages; domestic and sexual abuse; physical and psychiatric disabilities; and rising housing costs coupled with declining affordable housing options.”

Sotomayor acknowledged that to address the “immense challenges” created by the homelessness problem, “local governments need wide latitude.” And the 9th Circuit’s decision in this case gives them that latitude, she contended, by allowing them to punish littering, drug use, harassment, and public urination and defecation. “The only question” before the Supreme Court in this case, she contended, “is whether the Constitution permits punishing homeless people with no access to shelter for sleeping in public with as little as a blanket to keep warm.” The answer to that question, in her view, is “no.”

The majority reaches the opposite conclusion, Sotomayor argued, by misunderstanding Robinson. The ordinances at the center of this case “criminalize being homeless,” she wrote.

Moreover, Sotomayor suggested, the majority’s concern that upholding the lower court’s ruling would create too many “difficult questions,” such as whether someone is “involuntarily” homeless, is unfounded. “Ultimately,” Sotomayor said, “these are not metaphysical questions but factual ones.” But in any event, she continued, “[j]ust because the majority can list difficult questions that require answers does not absolve federal judges of the responsibility to interpret and enforce the substantive bounds of the Constitution.”

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.