Conservative justices on the Supreme Court seemed receptive to an Oregon city’s argument on April 22 that the Eighth Amendment does not prevent it from prosecuting homeless people for sleeping outside.
More than 580,000 people experienced homelessness in 2022, the U.S. Department of Housing and Urban Development has reported.
Grants Pass, population 39,000, is in southwest Oregon on the California border. Activist Gloria Johnson is the lead respondent in the appeal.
The city wants a lower court ruling barring it from enforcing its public camping ordinance to be lifted, saying that the court made mistakes when interpreting the law.
During the April 22 hearing, conservative justices, who comprise a 6–3 majority on the Supreme Court, acknowledged that homelessness was a thorny public policy issue but suggested an Eighth Amendment lawsuit was not the best way to deal with it.
Previously, the U.S. Court of Appeals for the Ninth Circuit held that Grants Pass was barred by the U.S. Constitution from enforcing criminal or civil penalties for camping on public lands.
The Ninth Circuit affirmed the July 2020 ruling of U.S. Magistrate Judge Mark Clarke of the U.S. District Court in Oregon, who found that Grants Pass’s “policy and practice of punishing homelessness violated the Cruel and Unusual Punishment Clause of the Eighth Amendment.”
Judge Clarke held that Martin v. Boise, a Ninth Circuit decision from 2019, was a controlling precedent in the case. That ruling said the Constitution “prohibits punishing people for engaging in unavoidable human acts, such as sleeping or resting outside when they have no access to shelter,” the judge wrote.
In Martin, the circuit court found that “‘so long as there is a greater number of homeless individuals in [a city] than the number of available beds [in shelters],’ a city cannot punish homeless individuals for ‘involuntarily sitting, lying, and sleeping in public.’”
To “criminalize indigent, homeless people for sleeping outdoors” would be to punish them based “on the false premise they had a choice in the matter.”
The Martin ruling was based in part on a Supreme Court ruling in Robinson v. California (1962), which held that states may not punish a person for a mere status or condition, such as a medical condition.
“Even one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold,” the late Justice Potter Stewart wrote.
The Ninth Circuit’s ruling upholding the district court’s decision is an example of “result-oriented jurisprudence at its worst, proof that an intellectually dishonest judge can reach any result he or she wants just by writing grammatically correct sentences and sprinkling in a few citations to, or quotations from, Supreme Court decisions,” according to Paul J. Larkin and Zack Smith of The Heritage Foundation.
During oral arguments before the Supreme Court, city attorney Theane Evangelis said the Ninth Circuit erred by “constitutionalizing the debate over how to address growing encampments.”
‘Cities Are Struggling’
Although the Eighth Amendment “does not tell courts who is involuntarily homeless, what shelter is adequate, or what time, place, and manner regulations are allowed,” in 35 suits and counting, federal courts “are now deciding everything from the exact size of campsites ... to the adequacy of empty beds at specific shelters ... and cities are struggling to apply arbitrary shifting standards in the field,” Ms. Evangelis said.Moreover, no precedent supports the circuit court’s rule, she said.
The circuit court misinterpreted the Robinson ruling “to bar any punishment for involuntary conduct that’s linked to a status, but Robinson held only that states cannot outlaw the status of drug addiction,” she said.
“It made clear that they can prohibit conduct like drug use. This court should not rewrite Robinson six decades later,” she said.
“This court should reverse and end the 9th Circuit’s failed experiment, which has fueled the spread of encampments while harming those it purports to protect.”
Chief Justice John Roberts asked Ms. Evangelis what would happen if Grants Pass failed to win this case.
“The city’s hands will be tied. It will be forced to surrender its public spaces, as it has been,” she said.
The three liberal justices vigorously questioned Ms. Evangelis.
Justice Sonia Sotomayor questioned what would happen if other cities enacted policies encouraging the homeless to go elsewhere in search of shelter.
Justice Jackson’s ‘Extreme Scenario’
Justice Ketanji Brown Jackson asked what would happen if the city “decided it was going to execute homeless people.”It might be a “very extreme scenario” but it would “solve the problems you’re talking about,” Justice Jackson said.
Ms. Evangelis acknowledged that such a policy would violate the Eighth Amendment.
Justice Elena Kagan asked if the city could criminalize homelessness.
“Sleeping is a biological necessity. It’s sort of like breathing. You could say breathing is conduct, too, but, presumably, you would not think that it’s okay to criminalize breathing in public,” she said.
Justice Neil Gorsuch suggested to Deputy U.S. Solicitor General Edwin Kneedler that if cities could not punish people for sleeping outside, then they might not be able to punish other undesirable activities.
“How about if there are no public bathroom facilities? Do people have an Eighth Amendment right to defecate and urinate outside?” he asked.
“Is there an Eighth Amendment right to cook outdoors? [Cooking is] a human necessity every person has to do.”
Mr. Kneedler’s office had filed a previous brief with the Supreme Court arguing that ordinances prohibiting sleeping on public property are unlawful “if they are applied in a manner that prevents an individual without available shelter from residing in the jurisdiction.”
Justice Brett Kavanaugh said that before assessing the constitutionality of a policy, the justices “usually think about whether state law, local law already achieves those purposes so that the federal courts aren’t micromanaging homeless policy.”
He suggested that homeless individuals could raise a “necessity defense” if charged with illegal camping by saying they had no choice but to violate the law.
The Supreme Court is expected to rule on City of Grants Pass v. Johnson by the end of June.
