Can cities criminalize camping? Here鈥檚 what to know about Supreme Court case.
Can communities make it a crime to sleep outside?
That question lies at the heart of a case being heard at the Supreme Court Monday.
Everyone involved in the case, City of Grants Pass v. Johnson, agrees that homelessness is a complex problem gripping the United States. But they disagree about how cities should be able to address it.
Why We Wrote This
A story focused onIs it 鈥渃ruel and unusual punishment鈥� to criminalize sleeping outside? Amid a housing crisis, the Supreme Court is going to wade into the complex problem of homelessness in U.S. cities.
In 2013, Grants Pass, a small city in southwest Oregon, enacted an ordinance criminalizing public camping. A group of homeless individuals sued in 2018, arguing that because they had nowhere else to sleep 鈥� the city has 鈥� the ordinance violated the Eighth Amendment鈥檚 prohibition on 鈥渃ruel and unusual punishment.鈥�
A panel of judges on the U.S. Court of Appeals for the 9th Circuit agreed. While cities can regulate camping in public spaces, they can鈥檛 criminalize it outright. Officials from both major political parties across the West, where homelessness is especially acute, say the ruling has hamstrung their ability to address homelessness.聽
What is the case about?
The justices are only being asked to consider if 鈥済enerally applicable鈥� laws regulating camping on public property violate the Eighth Amendment. There are other legal issues and questions at play in the case.
The Supreme Court is now tilted toward originalism, the judicial philosophy that the Constitution should be interpreted according to its original public meaning. And Grants Pass is arguing that the high court鈥檚 Eighth Amendment precedents have strayed from the original meaning.
A series of rulings in the 1960s held that while someone can be punished for their conduct, it鈥檚 unconstitutional to punish someone for their 鈥渟tatus.鈥� You can criminalize drug possession, for example, but not drug addiction. In this case, the 9th Circuit cited those previous cases in ruling that Grants Pass can鈥檛 punish a person with no home for camping when they need to sleep.
Grants Pass argues that this interpretation of the Eighth Amendment is inconsistent with its original meaning. Courts are only supposed to determine if certain methods of punishment are 鈥渃ruel and unusual,鈥� the city says, not if punishments can be applied at all.
鈥淣othing in [the amendment鈥檚] language immunizes certain conduct from all forms of punishment,鈥� the city wrote in a brief. And neither the city鈥檚 civil fines for camping on public property nor its short jail sentences for serial offenders 鈥渁re cruel and unusual.鈥澛�
The respondents counter that the city is punishing them for their very survival. The Eighth Amendment 鈥減rohibits punishing people for having an involuntary status,鈥� they wrote in a brief. 鈥淏eing involuntarily homeless is such a status, and when shelter is unavailable, it is a status that means you have nowhere to exist but outside.鈥�
Furthermore, lower court rulings still allow jurisdictions to regulate camping on public property. The 9th Circuit ruled that Grants Pass can ban the use of tents in public parks and limit the amount of bedding materials used in a public place.
How can cities protect themselves?
Cities and officials across the Western U.S. say the ruling is stopping them from protecting residents. The city of Chico, California, in an amicus brief, said the 9th Circuit decision has 鈥渉eavily restricted鈥� its ability to combat homelessness.
鈥淩esidents do not understand why Chico cannot immediately address issues of open drug use, violence, theft, uncontrolled fires, environmental degradation, and other threats,鈥� the city wrote in its brief.
The city says that it can only clear a homeless encampment if there is enough shelter space for every individual, and then provide at least 17 days鈥� notice before clearing the encampment.
In a brief supporting neither party, California Gov. Gavin Newsom wrote that the appeals court ruling is so ambiguous that district courts have held that it does prohibit cities from clearing encampments.
City policies 鈥渕ust respect constitutional rights and individual dignity,鈥� he added, but state and local leaders need 鈥渇lexibility ... particularly when faced with problems as complex as the crisis of homelessness afflicting many cities today.鈥�
Advocates say that criminalizing homelessness is unlikely to reduce the homeless population. In another amicus brief, six states wrote that criminalization could even increase homelessness 鈥渂y imposing debts or creating criminal records that make it harder to obtain secure housing.鈥澛�
Clare Pastore, a professor at the University of Southern California law school, admits that it is difficult for cities to enforce the 9th Circuit ruling, but only 鈥渂ecause there鈥檚 no city that has ever provided enough [shelter] space.鈥�
Homelessness 鈥渋s a humanitarian tragedy. But making a humanitarian tragedy a crime doesn鈥檛 solve anything,鈥� she adds. 鈥淐riminalization never housed people.鈥�
The plaintiffs, for their part, call the cities鈥� position 鈥減olitical deflection.鈥� As the issue has worsened, Western cities have found it 鈥渆asier to blame the courts than to take responsibility for finding a solution.鈥澛�
If the Supreme Court rules in favor of Grants Pass, it will force homeless individuals in the city to move elsewhere. That could trigger a harsh trend.
鈥淲hat happens when those jurisdictions push them back by imposing [tougher] penalties, setting off an escalating banishment race among municipalities across the West Coast?鈥� ask the respondents. 鈥淣either the City nor its amici say.鈥�
How could the court rule?
The high court could rule narrowly, either upholding the 9th Circuit or saying the Grants Pass ordinance specifically is constitutional.
A broader rule could have significant consequences for U.S. cities and their homeless populations. The decision could also have broader consequences for the Eighth Amendment, which some conservative jurists have been calling for.
Thomas Hardiman, a judge on the U.S. Court of Appeals for the 3rd Circuit, said that the precedents are so 鈥渋nscrutable鈥� they 鈥渞equire judges to ignore the law as written in favor of their own moral sentiments.鈥� The justices, he added, should 鈥渞eturn to the text and original meaning of the 8th Amendment.鈥�
In recent years, the Supreme Court has held that the Eighth Amendment prohibits juvenile life without parole and capital punishment for those who committed offenses as juveniles. (Three years ago, a more conservative court made it easier to for states to impose life without parole sentences on juveniles.)
The Grants Pass case, however, is not like other recent Eighth Amendment cases. Those cases concerned methods of punishment for people convicted of crimes. This case concerns the status-based versus conduct-based punishment question.
But today鈥檚 Supreme Court is also much more conservative. The 1960s, in particular, 鈥渨as just a very different era for the court, and it鈥檚 not clear to me that this court is going to follow that approach,鈥� says Steven Schwinn, a professor at the University of Illinois Chicago law school.
鈥淚t鈥檚 a little hard to [predict] the direction it鈥檚 going to go,鈥� he adds.
Professor Pastore, though, would be surprised if there are five justices who would endorse a ruling that could trigger a race to the bottom on punishing people for not being able to afford a place to stay.
鈥淓ven this conservative court would balk at that, because it鈥檚 such an obvious problem, this race between cities over who is most punitive,鈥� she says.
鈥淚 don鈥檛 see this court saying anyone can sleep anywhere at all times. [But] I don鈥檛 see this court saying criminalization anywhere and everywhere is fine,鈥� she adds. 鈥淭his is a hard case to predict.鈥�
