Does the Eighth Amendment protect homeless people from fines and criminal arrest if they have nowhere to go?
Based on Monday's SCOTUS oral argument, this might be another human rights issue for state legislatures, not the Constitution.
On Monday, April 22, the Supreme Court heard oral arguments in City of Grants Pass, Oregon v. Johnson, a case concerning whether the Eighth Amendment’s prohibition on cruel and unusual punishment applies to a town’s ordinance barring public sleeping and camping.
This case comes as the country is experiencing a large spike in homelessness. A December 2023 report by the Department of Housing and Urban Development estimated there were about 256,000 homeless individuals on any given night in 2023. Homelessness rose by its highest level since tracking started in 2007, increasing 12% from just 2022 to 2023.
Here’s what you need to know about this case.
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What’s this case about?
Grants Pass, a town in Oregon, has a series of ordinances that ban people who are homeless from sleeping outside while using blankets, pillows, or cardboard boxes. These laws are known as “camping bans,” and the town defines “campsite” as “any place where bedding, sleeping bag, or other material used for bedding purposes, or any stove or fire is placed.” Grants Pass imposes a $295 fine for violations, which may increase to more than $500 if the fine remains unpaid. After a person receives two citations, he or she can then be banned from city property. A violation of this then exposes the person to criminal trespass charges, the conviction for which carries a penalty of up to 30 days in jail and a $1,250 fine.
In 2018, three homeless residents of Grants Pass sued the city alleging that enforcement of the ordinances constitutes cruel and unusual punishment in violation of the Eighth Amendment. A federal district court in Oregon ruled in favor of the homeless residents, and prohibited the city from enforcing the ordinances during the day without 24-hour notice and at night completely. The ruling was upheld by a divided three-judge panel of the U.S. Court of Appeals for the 9th Circuit, and the city appealed to the Supreme Court.
What are the competing arguments?
The Eighth Amendment provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” According to the homeless residents of Grants Pass, the town has no homeless shelter that is unaffiliated with a religious group and open to everyone. Thus, they are involuntarily homeless and cannot be punished for not having a place to sleep.
The 8th Amendment is most often used in the death penalty context, but the plaintiffs looked to precedent that applied the Eighth Amendment to the notion that a person cannot be punished for their state of being. A 1962 Supreme Court case called Robinson v. California lends support to this argument. In Robinson, the Court ruled a law unconstitutional that made it a crime to “be addicted to the use of narcotics.” This and subsequent cases stand for the idea that the Eighth Amendment prohibits punishing people for having an “involuntary status.” So, the plaintiffs argue, homeless residents in Grants Pass are being punished for things beyond their control, namely “universal biological necessities like sleeping and using a blanket to survive cold temperatures when they have no choice but to be outside.”
Grants Pass, on the other hand, argues that this is an inappropriate use of the Eighth Amendment and a misunderstanding of its purpose. And two legal experts filed a “friend-of-the-court brief” siding with the city, in which they urged the Court to “affirm the constitutional requirement that all crime must be based on conduct,” rather than a state of being.
What happened at oral argument?
The Court seemed divided on Monday, providing no clear indication of how it might rule. One of the key issues the justices expressed concerns about was usurpation of local power—in other words, allowing federal judges, instead of local officials, to consider city policies designed to address homelessness. Chief Justice John Roberts found this to be especially problematic, and questioned why judges should make these decisions:
“Many people have mentioned this is a serious policy problem, and it's a policy problem because the solution of course is to build shelter, to provide shelter for those who are otherwise harmless… But municipalities have competing priorities. What if there are lead pipes in the water? Do you build the homeless shelter or do you take care of the lead pipes? What if there isn't enough fire protection? Which one do you prioritize? Why would you think that these nine people are the best people to judge and weigh those policy judgments?”
Much of oral argument was also devoted to consideration of Robinson and whether the city’s ordinances actually punish homeless people based on their status. The liberal justices seemed to agree with the plaintiffs.
Justice Sonia Sotomayor said the laws apply only to homeless people who sleep in public.
Justice Elena Kagan made an interesting comparison—sleeping in public for homeless people with nowhere else to go is like “breathing in public.”
And Justice Ketanji Brown Jackson stated that it appears cruel and unusual to punish people for actions, like sleeping, that are “basic human needs.”
Other Justices, like Roberts and Samuel Alito, suggested it was difficult to draw the line differentiating status from conduct. Alito posited 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.”
Does the Court even need to decide this case based on the Eighth Amendment?
Perhaps the most significant aspect of oral argument was the Justices’ debate over whether they even needed to address the Eighth Amendment question at all. Some of the Justices, including Brett Kavanaugh, believed that the homeless residents’ argument that they can’t be penalized because they have nowhere else to go could be better addressed utilizing a “necessity defense,” which is a defense to liability for illegal conduct where the conduct can’t be avoided. Under this theory, the argument goes, homeless residents can’t be criminally liable for violating the ordinances because they can’t avoid sleeping or camping in public.
Kavanaugh cited the line-drawing issues the case presents in explaining that the necessity defense is a viable option. According to him, using the necessity defense instead of the Eighth Amendment would allow the Court to “avoid having to constitutionalize a role for federal judges” in making decisions about how local officials should address their homelessness problems.
Kelsi Brown Corkran, the lawyer for the homeless residents, rejected this suggestion, stating that the Oregon courts have never applied the necessity defense to cases like this and it’s unclear whether the defense would even be available for the fines at issue here.
Bottom line?
The ordinances at issue in this case put homeless residents in a dire situation, essentially forcing them to either disappear or to find a home to avoid criminal arrest. This conundrum is not a choice—it’s an impossibility. As Kelsi Brown Corkran stated during oral argument, it is “physically impossible for a homeless person to live in Grants Pass” without facing the potential for fines and jail time.
Follow the facts,
KW
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