Anatole France, a celebrated man of letters, was a master of irony and satire. One of his best-known lines: “In its majestic equality, the law forbids the rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread.” That could be the introduction to a Supreme Court hearing on Monday, pondering a city’s power to punish homeless people for sleeping outdoors.
Tomorrow’s hearing: City of Grants Pass v. Johnson The hearing begins at 10 a.m. and is scheduled for 65 minutes. This case opens the Court’s final week of hearings for this term.
Background: Once a year, the federal government does a nationwide survey, a fairly imprecise count, of the number of homeless people in America. Last year, the total counted was 653,104 – an increase of more than 12 percent over the year before. Of the total, it was estimated that almost 40 percent were described as “unsheltered” – that is, they were “sleeping outdoors or in places not intended for human habitation.”
Across the nation, local governments have reacted in different ways to homelessness, a concern in every age but today a troubling situation made worse by the covid pandemic when many people became unemployed and lost their homes.
The National League of Cities argues that the wrong approach is to “shuffle people between streets and jails.” If homelessness is to be solved, that organization says, “we must fix systems that contribute to it, not blame people failed by it. Housing is the fundamental solution.”
Some cities have used criminal punishment – jailing, primarily – as a response. This case involves a less severe approach: punishment by civil fines. That would not usually result in going to jail.
The facts of this case: Grants Pass, once a stagecoach stop in the Old West, is a busy city of just under 40,000 people. It is in southern Oregon’s wine country, known for its pinot noir. The city’s tourist invitation is “Live Rogue,” a reference to the Rogue River that runs through the city and is popular with canoe and kayak paddlers.
As many as 600 people who are homeless live in the city. That group is defined in court documents as individuals “who are living in a place not designed for humans.” Persons who are living in a shelter, even if only temporarily, are not counted as homeless in this case.
For years, Grants Pass has had a series of local ordinances seeking to deal with vagrancy. It did not actively enforce those, however, until after a community meeting called by its City Council in 2013. That session drew loud complaints from officials and residents. One member of the Council argued that the city “should make it uncomfortable enough for homeless personnel in our city so they will want to move on down the road.”
That year, and in each of the following five years, police issued a rising number of tickets for violations of the local ordinances.
At issue here are these ordinances: one bans sleeping on sidewalks, streets, alleys or doorways and carries a fine of $25 for a violation, which can rise to $160 if not paid; two that ban living in a campsite on public property or camping in public parks, with fines of $295 for a violation, rising to $537 if not paid; two that give police the authority to exclude a person from entering a public park after being issued two or more tickets for violations, and one that allows criminal trespass charges if a person has previously been excluded from the parks and returns.
In 2018, a federal appeals court that hears cases from Western states ruled in a case from Boise, Idaho, that ordinances like those in Grants Pass were unconstitutional as a form of “cruel and unusual punishment,” banned by the Constitution’s Eighth Amendment. (That case was appealed to the Supreme Court, but the Justices without explanation chose in 2019 not to review it.)
Soon after the appeals court decision in the Boise case, a small group of homeless people in Grants Pass sued the city in federal court, challenging the constitutionality of the anti-sleeping and anti-camping laws. A federal trial judge barred enforcement of most of the provisions, relying on the appeals court’s Boise decision. The enforcement ban was mostly upheld by a three-judge panel of the appeals court. The full bench of the appeals court split 14-to-13 in refusing to reconsider the decision. Grants Pass then appealed to the Supreme Court.
The Biden Administration’s Justice Department is taking part in the case, supporting the view that the Eighth Amendment protects the homeless from punishment for sleeping or camping in public places, but arguing that the lower court order against Grants Pass was too broad.
Courts, the Department contends, should narrow the scope of rulings against such laws by determining whether the individuals who sued are, in fact, personally without a place to live. A Department lawyer will take part in the hearing to make that point.
The question before the Court: Does the Eighth Amendment bar city governments from punishing homeless people with civil fines for sleeping or camping on public property?
Significance: The Supreme Court has usually applied the Eighth Amendment to bar unusual or excessive forms of punishment for persons convicted of crimes. A lingering issue, however, has been whether that Amendment is broad enough to ban punishment based upon a person’s mere status – such as being homeless or poor, without having committed any crime.
The Constitution in several clauses does ban government from discrimination based upon a person’s human characteristics, like race, sex, or nation of birth. Being poor or homeless does get some constitutional protection, because the Court has ruled at least twice that state and local governments may not constitutionally exclude needy people from public benefits just because they are newly arrived residents. Those decisions were based on a constitutional right to travel; that is not at issue in this case.
Arbitrary government action – treating someone in a negative or hostile way for no good reason – can be barred as a violation of a constitutional right to due process. But that is also not at issue here.
The Supreme Court, in a 1962 decision (Robinson v. California), came close to establishing a constitutional right not to be punished based on mere status. In that ruling, the Court found an Eighth Amendment violation in a state law that made drug addiction, itself, a crime. However, six years later, in a ruling in Powell v. Texas, the Court refused to extend that principle to punishment of a person addicted to alcohol, saying the science on that was too undeveloped to form a legal judgment.
Another area of constitutional law that might have some bearing upon laws that aim at homeless people are limitations on loitering and vagrancy. The Supreme Court has made clear that those kinds of laws must be written in ways that make it explicitly clear to ordinary people just how the laws apply. Laws with vague references to loitering will not pass constitutional testing, those rulings have said.
To the extent that the Grants Pass ordinances against homeless people’s conduct were intended to banish them from the city altogether, by essentially coercing them into leaving town, the city may have run afoul of the Court’s protection of the right to travel, but banishment itself has not been ruled unconstitutional. Although some scholars have suggested that there ought to be a constitutional “right to live where you want,” that, also, has not been recognized by the Court.
As this survey of what is and is not within the existing law as it applies to homeless people shows, the Grants Pass case cuts across many currents of legal thought, and may well influence how the Court itself thinks about the homeless and the Constitution.
The Court will broadcast “live” the audio (no video) of this hearing on its homepage, supremecourt.gov To listen, click on “Live Audio” and follow the prompt when the courtroom scene appears lower on the page. The audio also will be available, under the title of the case, on C-Span TV at this link: cspan.org/supremecourt
