The Criminalization of Homelessness
Author’s Note: This article is supplemented by quotes from an interview I conducted with David Peery, the Executive Director of the Miami Coalition to Advance Racial Equity. Mr. Peery is writing an amicus brief on behalf of the Miami Coalition and the National Coalition for the Homeless in the undermentioned Supreme Court case, Grants Pass v. Johnson, which the Court will hear oral arguments for in April 2024.
First they came for the socialists, and I did not speak out—
because I was not a socialist.
Then they came for the trade unionists, and I did not speak out—
because I was not a trade unionist.
Then they came for the Jews, and I did not speak out—
because I was not a Jew.
Then they came for me—and there was no one left to speak for me.
- Martin Niemöller, Lutheran Minister
Homelessness has been increasing since 2017, and more localities have begun to notice. However, rather than see the issue for what it is—a symptom of a wider systemic failure defined by the lack of low-cost housing, the limited number of housing assistance programs, and poverty emblematic of America’s growing economic inequality—public officials have pointed the finger at the very individuals bearing the brunt of our nation’s moral and policy failures.
The senseless victim-blaming has run rampant across the political spectrum, with leaders of both parties looking to clear away homeless individuals from public areas without offering viable solutions. To sustain their efforts, several localities have passed municipal codes to impose civil and criminal penalties on homeless individuals for the heinous crime of … sleeping. While you and I can perform basic human functions every day without the fear of the state punishing us for simply surviving, this is the daily reality for thousands of homeless individuals across the nation—and this is the crux of the issue in the forthcoming Supreme Court case Grants Pass v. Johnson, a case in which the Court will decide whether camping bans on public property against homeless individuals amount to a violation of the Eighth Amendment’s Cruel and Unusual Punishments clause.
The issue stems from several city ordinances in Grants Pass, Oregon which aim to curb homelessness. These ordinances prohibit homeless individuals from using a blanket, pillow, or cardboard box while sleeping in the city, impose civil fines of up to several hundred dollars, and subject individuals to potential criminal prosecution for trespass. Effectively, the City of Grants Pass made the status of homelessness punishable—an outrageous scheme, considering that the number of homeless individuals outnumbers available shelter beds in the city, leaving many homeless individuals nowhere else to go. This is not to mention that shelters are mere band-aids on a gunshot wound.
“[Shelters are] simply outlets for cities, basically, to hide people for maybe a month or two—to sweep homelessness under the rug. Shelters are effectively useless for people who are suffering from chronic homelessness.” - David Peery
Grants Pass was taken up by the Supreme Court after the City petitioned for certiorari following the Ninth Circuit’s decision to affirm the district court’s judgment that the city’s anti-camping ordinances violated the Eighth Amendment. Undergirding the Ninth Circuit’s reasoning was a previous decision it made in Martin v. City of Boise, 902 F.3d 1031 (2018), a case in which the court articulated restrictions on what a city can preclude homeless individuals from doing.
In Martin, six individuals who experienced homelessness were cited by Boise police for violating either of two city ordinances: the “Camping Ordinance,” which classified using “any of the streets, sidewalks, parks, or public places as a camping place at any time” as a misdemeanor, and the “Disorderly Conduct Ordinance,” which bans “[o]ccupying, lodging, or sleeping in any building, structure, or public place, whether public or private . . . without the permission of the owner or person entitled to possession or in control thereof.” Importantly, the City of Boise had limited shelter options, leaving homeless individuals no choice but to sleep outdoors. The codes, paired with the practical reality of viable shelter options for homeless individuals, effectively criminalized homelessness.
The court thus grappled with whether the Cruel and Unusual Punishments Clause of the Eighth Amendment prohibits the enforcement of a ban on sleeping outside against homeless individuals who have no alternative shelter options. First, the court recognized that the Supreme Court has established the standard for the Cruel and Unusual Punishments Clause to place “substantive limits on what the government may criminalize.” Then, the Court reviewed Robinson v. California, 370 U.S. 660 (1962) and Powell v. Texas, 392 U.S. 514 (1968), two cases in which the Supreme Court dealt with the criminalization of a person’s status.
The Robinson Court held that a California statute criminalizing an individual’s status of having a narcotics addiction violated the Cruel and Unusual Punishments Clause because it was punishing having the addiction itself rather than the actual use of narcotics. However, the Robinson decision failed to provide guidance on whether status also included involuntary conduct. For example, if a person’s status was being addicted to narcotics, could they still be criminalized for the involuntary conduct associated with a narcotics addiction? Expounding the Robinson holding, the Supreme Court in Powell—though not in a majority opinion, but through five justices’ agreement in principle [1]—articulated that the Eighth Amendment prohibited criminalization of a status and its associated involuntary conduct.
In Powell, a Texas statute criminalized both the status of intoxication and the act of being found in a public place while intoxicated. The criminalization of the status of intoxication mirrored the criminalization of the status of narcotics addiction in Robinson: for people with chronic alcoholism, intoxication was not within their bounds of control. However, the second component—a matter of conduct—was the issue in question. The dissent, along with Justice White in his concurrence, recognized that the act of being found intoxicated in public was unavoidable for a chronic alcoholic with the status of intoxication.
But the essential constitutional defect here is the same as in Robinson, for in both cases the particular defendant was accused of being in a condition which he had no capacity to change or avoid. [...] [the] appellant was powerless to avoid drinking [...] and[,] once intoxicated, he could not prevent himself from appearing in public places.
392 U.S. 514, 567-568 (1968), Fortas dissenting.
Justice White largely agreed with this principle, stating that if a conduct were truly unavoidable, such as a homeless, chronic alcoholic drinking in public, the respective individual could not be convicted under the Eighth Amendment.
With these foundational principles in Robinson and Powell, the Ninth Circuit in Martin held that the Eighth Amendment prohibits the criminalization of sitting, sleeping, or lying outside on public property for homeless individuals who cannot acquire shelter. The court reasoned that the status of homelessness produces the unavoidable consequence of sleeping in public, for sleeping is an act or conduct every human must engage in.
Given Martin, the Grants Pass ordinances were found to be clear violations of the Eighth Amendment. The ordinances effectively prohibited homeless individuals from engaging in unavoidable acts: using “items necessary to facilitate sleeping outdoors.” The Ninth Circuit found that such acts, such as using a pillow, were necessary for a homeless individual’s unavoidable conduct of sleeping outside, which was an unavoidable consequence of their homelessness status.
At its face, Grants Pass then poses to the Supreme Court the question of whether cities have the ability to effectively criminalize homelessness. However, the case presents more wide-reaching consequences with respect to the broader criminalization of status.
“It’s a huge slippery slope. If the Supreme Court rules that cities can arrest people who are involuntarily homeless, [cities will] arrest people for their status, not their actions. Now, you can arrest people for being poor. You can arrest people for being immigrants. You can arrest people for being Black.” - David Peery
Of course, there are constitutional protections for several identity classes, but the overarching message remains grave. A court-sanctioned criminalization of an individual’s involuntary status, and the associated conduct inherent to that status, leaves the door to identity-based persecution wide open.
[1] While this principle was not within the plurality opinion, the position of Justices Fortas, Douglas, Brennan, and Stewart, who were in dissent, to prohibit the State from punishing an involuntary conduct that is an unavoidable consequence of a person’s status, was consistent with the position of Justice White in his concurrence. See Martin, 920 F.3d 584, 616 (2019).
Kevin Kim is a senior at Brown University, concentrating in International and Public Affairs with a certificate in Engaged Scholarship. He is a staff writer for the Brown Undergraduate Law Review and can be contacted at kevin_s_kim@brown.edu.
Maia Eng is a sophomore at Brown University concentrating in International and Public Affairs. She is an editor for the Brown Undergraduate Law Review and can be contacted at maia_lourdes_eng@brown.edu.