The Supreme Court heard arguments on Monday over whether fining or arresting unhoused people who lack other shelter and camp in public areas violates constitutional protections against cruel and unusual punishments.
It is the most important Supreme Court case about homelessness in 40 years, advocates say, and has the potential to affect much broader policy. A decision siding with the small Oregon mountain community at its center could let officials nationwide penalize homeless people for sleeping with as little as a blanket outside.
Liberal justices aggressively questioned the lawyer for the city, saying that in practice its laws criminalize someone for being homeless — which is a status rather than an action subject to punishment. Some conservative justices also appeared skeptical of the town’s arguments in City of Grants Pass v. Johnson.
California officials have a strong interest in the case as the state grapples with some of the highest rates of homelessness and housing costs in the United States.
Republicans and Democrats, including Gov. Gavin Newsom and Rep. Kevin Kiley, R-Roseville, who attended the hearing, are watching the case for the same reason: clear legal direction on clearing homeless encampments.
“That’s the problem that we have right now,” Kiley told The Bee and other reporters outside the court after the hearing, “is we have federal courts dictating homelessness policy for very diverse areas who are experiencing the homelessness issue to a greater or lesser degrees.”
The question at the center of the case, City of Grants Pass v. Johnson, is whether fining or arresting people for camping in public areas — from a parked car to a tent at the park or a blanket on the sidewalk — when they have nowhere else to go violates the Eighth Amendment to the U.S. Constitution. The amendment prohibits “cruel and unusual punishments.”
At the heart of the case is the 1962 Supreme Court case that said the Eighth Amendment prevented criminalizing someone’s status, Robinson v. California, specifically regarding the status of being addicted to drugs.
Homelessness is a status, a lawyer for unhoused individuals in Grants Pass told justices, and therefore unhoused people sleeping outside with a form of covering should not be punished if they have no alternatives for housing.
The Supreme Court, which has a 6-3 conservative majority, is expected to release a decision by the end of June.
Tackling a growing issue
The number of people experiencing homelessness in the U.S. rose a record 12% from 2022 to 2023, with estimates exceeding 653,000 people in January 2023, according to the U.S. Housing and Urban Development’s most recent annual report. In California, more than 180,000 people were experiencing homelessness at that given point.
Newsom and others have said lower courts, relying on broad interpretations of judicial decisions related to this case, have prevented officials from evicting encampments even when shelter beds were available.
While these lawmakers aren’t siding with the Oregon town of Grants Pass, which approved laws that could amount to criminal charges for homeless people sleeping on public grounds, they are hoping for greater ability to regulate camping.
But housing advocates and progressive legislators say even a narrow ruling could lead to more fines and arrests of unsheltered people. Advocates say fining, ticketing or jailing people who can’t afford housing would increase homelessness, perpetuate poverty and criminalize the status of being unhoused that these people already don’t want.
Instead, advocates say, officials should focus more on bolstering affordable housing and addressing poverty, which disproportionately affects Black, Latino and Indigenous people.
A narrower ruling that allows some restrictions on camping could result in cities perpetually moving unhoused people to different public areas or to shelters that might be worse than the tents, cars or other makeshift coverings they are in, said Veronica Lewis, the director of the Homeless Outreach Program Integrated Care System in Los Angeles.
In an interview, Lewis said, “There’s no recognition of the realities and the root causes of why people are in these situations.”
“You take away a person’s choice,” Lewis added. “Or literally people have to choose with being uncomfortable or feeling unsafe in a shelter setting or eventually, unfortunately, feeling unsafe and having to deal with being institutionalized in jail, which is ultimately going to be the consequence if they don’t move.”
What is the Supreme Court homelessness case?
The case originated from a southwest Oregon town of about 40,000 people, Grants Pass, which over a decade ago attempted to ban unhoused people from camping in public spaces. The city council instituted fines for people sleeping outside — even those using as little as a blanket, pillow or cardboard box — that could eventually lead to criminal charges.
Grants Pass has one overnight shelter for adults with 138 beds. But the shelter, the Gospel Rescue Mission, has a Christian focus and strict restrictions such as no pets, drugs, alcohol and required attendance at twice daily religious services that make it unpalatable or inaccessible to many.
There are about 600 people experiencing homelessness in Grants Pass. Judges have written that there is no adequate shelter for unhoused people there.
In 2018, the Ninth Circuit Court of Appeals, which covers Western states, decided in Martin v. City of Boise that the Eighth Amendment prohibited local governments from criminalizing “sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter.”
Lawyers representing unhoused residents sued Grants Pass over the ordinances. A federal judge in an Oregon court ruled in 2020 that due to the lack of shelter, punishing homeless for “sleeping or resting outside while having a blanket or other bedding to stay warm and dry constitutes cruel and unusual punishment in violation of the Eighth Amendment.”
In 2022, the Ninth Circuit agreed. Grants Pass could not enforce its anti-camping ordinances. This blocked civil and criminal punishments in Western states in its jurisdiction, including California.
What do California lawmakers want the Supreme Court to do?
Since the 2022 ruling, some judges have blocked cities from evicting encampments unless there are enough shelter beds for its entire homeless population. Legislators have said the appellate decisions were confusing and did not properly distinguish what is voluntary versus involuntary homelessness.
Newsom’s lawyers urged the Supreme Court in a brief toward a narrow interpretation that sides with neither Grants Pass nor lawyers for that city’s unhoused people. Officials should be allowed to restrict where encampments are and clear them if there is a health or safety threat, Newsom and other lawmakers argue, while ensuring there are services available to unhoused residents.
A lawyer for the Biden administration pressed this point at Monday’s hearings. Deputy Solicitor General Edwin S. Kneedler told justices that officials unjustly “make it a crime to be homeless in Grants Pass.” However, he argued, the Ninth Circuit’s decision was too broad and did not lay out clear ways to determine whether an individual is involuntarily sleeping on the street.
Others want Martin v. Boise overturned, including Sacramento County District Attorney Thien Ho, who argued in a brief that the decision failed to chart course for determining if an individual is involuntarily homeless.
Republican lawmakers — including Reps. Kiley, Tom McClintock, R-Elk Grove, and Doug LaMalfa, R-Richvale — have said courts shouldn’t decide how communities regulate encampments. A lawyer for them and other GOP lawmakers submitted a brief urging the Supreme Court to overturn Martin v. Boise “to ensure local municipalities are full able to combat the crime that inevitably results from unrestricted homeless encampments.”
“There has been, apart from the initial Boise decision, a whole host of really absurd decisions that have basically just stopped them from being able to do anything at all within the circumstances,” Kiley said. “So I agree with the governor there, but his belief and the position of the Biden administration still does not solve the underlying problem, which is the Boise decision which got the federal courts involved in homeless policy in the first place.”
Meanwhile advocates and progressive lawmakers — including Reps. Ro Khanna, D-Fremont, Barbara Lee, D-Oakland, and Linda Sanchez, D-Norwalk — say restricting camping when there are no or limited shelter options is inhumane and costly.
Jesse Rabinowitz of the National Homelessness Law Center, which submitted the progressive lawmakers’ brief, said penalizing unhoused people is “a way for elected officials to push the blame on to people living in poverty instead of taking accountability for the fact that they haven’t done what is needed to address the homelessness crisis.”
This story was initially printed April 22, 2024, 11:00 AM.
Gillian Brassil is the congressional reporter for McClatchy’s California publications. She covers federal insurance policies, individuals and points that impression the Golden State from Capitol Hill. She graduated from Stanford College.