The US Supreme Court heard oral arguments Monday on whether enforcing public camping ordinances against unhoused people without adequate shelter is cruel and unusual punishment and, therefore, prohibited by the Eighth Amendment to the US Constitution.
The case, Grants Pass v. Johnson, originated in southern Oregon. The central question before the court revolves around the city’s ordinances prohibiting unhoused individuals from sleeping in public places. During the two-and-a-half hours of oral arguments, one of the main points discussed was the distinction between status and conduct. In the 1962 case Robinson v. California, the Supreme Court ruled that it’s unconstitutional for a state to punish someone for being a drug addict (a status) rather than for committing a specific act such as selling drugs (conduct). In this case, the respondents argue that Grants Pass’s ordinances effectively criminalize the status of being unhoused in the city. Justice Elena Kagan supported the argument by stating, “Sleeping is a biological necessity. It’s sort of like breathing. I mean, you could say breathing is conduct, too, but, presumably, you would not think that it’s okay to criminalize breathing in public.” Justice Sonia Sotomayor pointed out, “You don’t arrest babies who have blankets over them. You don’t arrest people who are sleeping on the beach, as I tend to do if I’ve been there a while”, she argued, “only homeless people who sleep outdoors will be arrested.”
Representing the city, Theane Evangelis contended that this case does not involve status but focuses on public camping law violations. They argue that unhoused individuals are punished for their actions, not merely their status. In response to Chief Justice John Roberts’s question, “What if you do not prevail?” the counsel for the city said, “The city’s hands will be tied. It will be forced to surrender its public spaces, as it has been.” The petitioner’s counsel then emphasized, “These are low-level fines and very short jail terms for repeat offenders that are in effect in many other jurisdictions. This is not unusual in any way. It is certainly not cruel.”
The legal complaint dates back to 2018, when the plaintiff argued that certain individuals sleeping outside in Grants Pass face citations and fines when no shelters are available, leaving them with no options to rest. In 2020, the district court ruled that the city’s homelessness-related ordinances were unconstitutional. Grants Pass appealed this decision to the 9th Circuit Court, which upheld the decision in a three-judge ruling. The city then appealed to the US Supreme Court. Over this period of time, numerous ordinances have been established in other US cities facing a national housing crisis. Presently the city of Los Angeles and 24 states have filed amicus briefs in favor of the city of Grants Pass. Most recently Governor DeSantis of Florida signed a bill preventing tent encampments on public land.
Addressing the growing issue of the nation’s housing crisis, the 2023 Annual Homelessness Assessment Report released updated statistics:
On a single night in 2023, roughly 653,100 people – or about 20 of every 10,000 people in the United States were experiencing homelessness. Six in ten people were experiencing sheltered homelessness—that is, in an emergency shelter (ES), transitional housing (TH),or safe haven (SH) program—while the remaining four in ten were experiencing unsheltered homelessness in places not meant for human habitation.
Amongst numerous amicus briefs for the respondents, the ACLU weighed in, “when applied to people with nowhere else to go, the ordinances in this case disproportionately punish unavoidable, life-sustaining, and fundamentally human acts.”
A decision in Grants Pass v. Johnson is expected this summer and could have broad implications for how municipalities can regulate homelessness.
