Clare Pastore: Court weighs legality of banning public camping

##Clare Pastor

About the writer: Clare Pastore, longtime professor at the University of Southern California’s Gould School of Law, earned her bachelor’s degree at Colgate and law degree at Yale. A former senior counsel with the American Civil Liberties Union, her areas of primary focus are poverty, civil rights and access to justice. This essay is from The Conversation, a repository of lay versions of academic research, found at theconversation.com/us.

Late last month, the U.S. Supreme Court heard a case that could radically change how cities respond to the growing problem of homelessness and aggravate the nation’s racial justice gap in the process. A ruling is expected late next month.

City of Grants Pass v. Johnson began when a small Oregon city with a single homeless shelter began enforcing a local ordinance barring people from sleeping in public using even rudimentary protection — even if they had nowhere else to go.

The court must now decide whether it is constitutional to prevent homeless people from doing in public things that are necessary to their survival, such as sleeping, when there is no option open to them to do these acts in private. The case raises important questions about the scope of the Constitution’s cruel and unusual punishment clause and the limits of cities’ power to punish involuntary conduct.

Homelessness in the United States is a massive problem. The number of people without homes held steady during the COVID-19 pandemic largely because of eviction moratoriums and the temporary availability of expanded public benefits, but it has risen sharply since 2022.

The latest data from the federal government’s annual “Point-in-Time” homeless count found 653,000 people homeless across the U.S. on a single night in 2023 — a 12% increase from 2022 and the highest number reported since the counts began in 2007. Nearly 300,000 were living on the street or in parks, rather than in temporary shelters or other safe havens.

Scholars and policymakers have spent many years analyzing the causes of homelessness. They include wage stagnation, shrinking public benefits, inadequate treatment for mental illness and addiction, and the politics of siting affordable housing. There is little disagreement, however, that the simple mismatch between the vast need for affordable housing and the limited supply is a central cause.

Like poverty, homelessness in the U.S. is not race-neutral. Black Americans represent 13% of the population but comprise 21% of people living in poverty and 37% of people experiencing homelessness.

The largest percentage increase in homelessness for any racial group in 2023 was 40% among Asians and Asian-Americans. The largest numerical increase was among people identifying as Latino, up nearly 40,000 in 2023.

Racial disparity also shows up in criminalization and its enforcement. A 2020 study in Austin, Texas, showed that Black homeless people were 10 times more likely than white counterparts to be cited by police for camping on public property. In fact, the criminalization of homelessness has roots in historical use of vagrancy and loitering laws against Black Americans dating back to the 19th century.

Increasing homelessness, especially its visible manifestations such as tent encampments, has frustrated city residents, businesses and policymakers across the U.S. and led to an increase in crackdowns. Reports from the National Homelessness Law Center in 2019 and 2021 have tallied hundreds of laws restricting camping, sleeping, sitting, lying down, panhandling and loitering in public.

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

In a 2019 case, Martin v. City of Boise, the 9th U.S. Circuit Court of Appeals held that the Eighth Amendment’s cruel and unusual punishment clause forbids 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 is unconstitutional to criminalize being a drug addict. Robinson and a subsequent case, Powell v. Texas, have come to stand for distinguishing between status, which cannot constitutionally be punished, and conduct, which can.

In the Grants Pass case, the 9th Circuit went one step further, holding that the Constitution also banned criminalizing the act of public sleeping with rudimentary protection from the elements. The decision was contentious, though, as judges disagreed over whether the anti-camping ban regulated conduct or the status of being homeless, which inevitably leads to sleeping outside when there is no alternative.

Grants Pass is urging the Supreme Court to abandon the Robinson precedent and its progeny as “moribund and misguided.” It argues that the Eighth Amendment forbids only certain cruel methods of punishment, which do not include fines and jail terms.

The homeless plaintiffs argue that they do not challenge reasonable regulation of the time and place of outdoor sleeping, 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 argue that broad anti-camping laws inflict overly harsh punishments for “wholly innocent, universally unavoidable behavior” and that punishing people for “simply existing outside without access to shelter” will not reduce this activity. They contend that criminalizing sleeping in public when there is no alternative violates the Eighth Amendment in three ways: by criminalizing the “status” of homelessness, by imposing disproportionate punishment on innocent and unavoidable acts, and by imposing punishment without a legitimate deterrent or rehabilitative goal.

The case has attracted dozens of amicus briefs, including from numerous cities and counties that support Grants Pass. They assert that the 9th Circuit’s recent decisions have worsened homelessness, stymied law enforcement and left jurisdictions without clear guidelines for preserving public order and safety.

On the other hand, the states of Maryland, Illinois, Massachusetts, Minnesota, New York and Vermont filed a brief urging the Court to uphold the 9th Circuit’s ruling, arguing that local governments retain ample tools to address homelessness and that criminalizing tends to worsen rather than alleviate the problem. And a brief from 165 former local elected officials agrees.