ARGUMENT ANALYSIS

Court divided over constitutionality of criminal penalties for homelessness

The Supreme Court on Monday was divided over a challenge to the constitutionality of ordinances in a southwest Oregon town that fines people who are homeless from using blankets, pillows, or cardboard boxes for protection from the elements while sleeping within the city limits. The city argued that the ordinances merely bar camping on public property by everyone, while the challengers contended that the laws effectively make it a crime to be homeless in the city and therefore violate the Constitution’s ban on cruel and unusual punishment.

Laws like these, known as “camping bans,” have been implemented across the country. The ordinances under review on Monday hail from Grants Pass, a city with a population of approximately 38,000 and as many as 600 people experiencing homelessness on any given day. To address its homelessness problem, the city in 2013 decided to increase enforcement of existing ordinances that bar the use of blankets, pillows, and cardboard boxes while sleeping within the city.

The ordinances impose a $295 fine for violations, with the fine increasing to more than $500 if it is unpaid. After two citations, police officers can issue an order that bans the individual from city property; a violation of that order exposes the individual to conviction on criminal trespass charges, which carry penalties of up to 30 days in jail and a $1250 fine.

After the U.S. Court of Appeals for the 9th Circuit ruled, in a case involving Boise, Idaho, that the Eighth Amendment’s ban on cruel and unusual punishment prohibits the imposition of criminal penalties for sitting or sleeping outside by people experiencing homelessness who do not have access to shelter, three people who are homeless in Grants Pass went to court to challenge that city’s ordinances. The lower courts agreed with the challengers that enforcement of the ordinances violates the Eighth Amendment, setting the stage for the Supreme Court’s review on Monday.

Representing the city, Theane Evangelis told the justices that Grants Pass, “like cities nationwide,” “relies on camping laws to protect its public spaces.” The court of appeals, she contended, tied the hands of Grants Pass and other municipalities in the 9th Circuit “by constitutionalizing the policy debate over how to address growing encampments.”

But Justice Brett Kavanaugh was at least initially dubious that reversing the 9th Circuit’s decision and allowing the city to enforce its ordinances would make a difference in addressing the homelessness problem. How would your rule help, he asked Evangelis, if there are not enough beds for people experiencing homelessness? Kavanaugh returned to this point a few minutes later, asking Evangelis how sending people to jail for violating the city’s ordinances would help to address the homelessness problem if there are still no beds available when they get out. Such individuals, he observed, are “not going to be any better off than you were before.”

Kelsi Brown Corkran, representing the challengers, argued that because Grants Pass defines a “campsite” as anywhere a homeless person is, within the city, with a blanket, it is “physically impossible for a homeless person to live in Grants Pass” without facing the prospect of fines and jail time. The order barring the city from enforcing its ordinances, she insisted, still leaves the city with an “abundance of tools” to address homelessness.”

Much of Monday’s argument focused on the Supreme Court’s 1962 ruling in Robinson v. California, holding that the Eighth Amendment’s ban on cruel and unusual punishment prohibited the state from making it a crime simply to be a drug addict in California, even if there was no proof that the defendant had ever used drugs in the state. The challengers contend that the city’s ordinances, like the state law in Robinson, punish people who are involuntarily homeless based on their status.

At the oral argument on Monday, the court’s liberal justices largely seemed to agree. Justice Sonia Sotomayor noted that the city’s ordinances only apply to homeless people who sleep in public. Police officers in Grants Pass, she suggested, don’t arrest others who fall asleep in public with blankets – for example, babies with blankets or people who are stargazing.

Evangelis pushed back, insisting that the city’s laws “regulate conduct of everyone. There’s nothing in the law that criminalizes homelessness.”

But Sotomayor’s more liberal colleagues seemed equally unconvinced. Justice Elena Kagan compared sleeping in public, for people who are homeless and have nowhere else to go, to “breathing in public.”

Justice Ketanji Brown Jackson echoed Kagan’s skepticism, telling Evangelis that Robinson was not a helpful case for the city. It seems cruel and unusual, she posited, to punish people for acts – like sleeping – that constitute “basic human needs.”

By contrast, Justice Clarence Thomas emphasized that the law at issue in Robinson barred both the use of drugs and being addicted to drugs. Do the city’s ordinances, Thomas asked, make it a crime to be homeless?

They do not, Evangelis responded.

But other justices suggested that it was more difficult to draw the line between status and conduct, which under Robinson can be punished. Chief Justice John Roberts, for example, seemed to suggest that because someone who is homeless can instantly become “not homeless,” homelessness is not a status.

And Justice Samuel Alito indicated that although “status is different from conduct, … there are some instances of conduct that are closely tied to status or if homelessness is defined as simply lacking a place to stay in a particular night, they amount to the same thing.”

Justice Amy Coney Barrett asked Corkran whether it would violate the Eighth Amendment for the city to enforce its laws in other scenarios involving basic human needs like eating and using the bathroom. Could the city fine or arrest people who are homeless for stealing food or urinating or defecating in public?

Corkran told Barrett that stealing food is not “part of the definition of homelessness, and it’s also not a universal attribute” like sleeping or breathing. She assured Barrett that public urination and defecation would not violate the Eighth Amendment under the challengers’ theory.

Deputy Solicitor General Edwin Kneedler argued on behalf of the Biden administration, which filed a “friend of the court” brief largely supporting the challengers. He agreed with the challengers that the city cannot circumvent the Supreme Court’s holding in Robinson by making it illegal to live there if you are homeless. But, he continued, the court of appeals was wrong to provide broad relief to the challengers. Instead, he contended, Robinson requires an individualized determination whether a specific person “truly does not have somewhere to live.”

Roberts posed a series of hypotheticals to test the scope of the government’s theory. If a town next to Grants Pass built a new shelter that has many vacant beds, Roberts asked, would there still be a right to sleep in Grants Pass? What if a police officer offered people who are homeless in Grants Pass a ride to a shelter that is 30 miles away?

Alito asked Kneedler how police officers would implement such a rule on a day-to-day basis. What if there is a question, Alito queried, about whether shelter beds are indeed available and, if so, how many? What if a shelter won’t allow people who are homeless to bring their dogs, or people with mental health issues?

Here too, Kneedler acknowledged, the court faced “line-drawing problems.”

Corkran sought to assuage the justices’ concerns about some of those line-drawing problems, emphasizing that the focus should be on “physical and legal access to shelter.” If someone who is homeless turns down a place at a shelter because of the shelter’s “no pets” policy, she conceded, they do not have an Eighth Amendment claim under the challengers’ theory.

The justices also debated whether they needed to address the Eighth Amendment question at all, or whether the challengers’ contention that they cannot be punished because they have nowhere else to go would be better addressed through a “necessity defense.” Justice Neil Gorsuch was one of the justices to broach this prospect, suggesting that it would apply to bar fines or prosecutions for actions like eating or camping in public.

Evangelis responded that Oregon law already provides the challengers with such a defense.

Citing the line-drawing problems presented in the case, Kavanaugh appeared to agree that the necessity defense might be a better option, because it would allow the court to “avoid having to constitutionalize a role for federal judges” in making decisions about how cities can and should deal with their homelessness problems.

Barrett raised an analogous idea, observing that the court of appeals had blocked the city from enforcing its ordinances against the challengers. But if we agree with Robinson, she said, why wouldn’t it make more sense to require people who are homeless to raise Robinson like a necessity defense once they receive citations, given the fact-intensive nature of the determination of whether someone is involuntarily homeless?

Kagan pressed Evangelis to explain how, as a practical matter, a necessity defense would work in the case of people who are homeless. Would the city push to have the citations issued, she asked, even if someone says that there is no space available in any shelters, and then the recipients of the citation would have to be aware that they could raise the defense later?

Corkran resisted any suggestion that the necessity defense might obviate the need for the justices to rule on the Eighth Amendment question. Oregon courts have not applied the necessity defense to cases like this one, she stressed, and it is not clear whether the defense would be available for the fines at issue in this case.

Jackson sought to dispose of the case entirely, observing that Oregon has adopted a law that mirrors the 9th Circuit’s holding in the Boise case. If the state has already precluded Grants Pass from taking the actions at the center of this case, she said, should the court weigh in on the Eighth Amendment question at all?

Evangelis countered that it should, explaining that the state law is very different from the standard outlined in the Boise case.

The case raised, Kagan told Evangelis, a “super-hard policy problem for all municipalities.”

This article was originally published at Howe on the Court.