Author: Erin Atienza
October 9, 2024
On June 28, 2024, the Supreme Court ruled in The City of Grants Pass, Oregon v. Johnson that the Eighth Amendment “cruel and unusual punishment” clause does not affect laws regulating camping on public property. The connection between camping on public property and cruel and unusual punishment may seem distant, but from the perspective of the approximately 653,104 individuals in the U.S. experiencing homelessness, this ruling implies serious consequences.
The Case
Grants Pass v. Johnson started as two homeless individuals filing a class action suit against the city of Grants Pass on behalf of the “involuntarily homeless people living in Grants Pass.” Three laws were challenged, each one punishing camping or sleeping on public property. The claimants, Gloria Johnson and John Logan, alleged that the three laws violated the Eighth Amendment’s Cruel and Unusual Punishment Clause, based on an earlier Ninth Circuit decision. In 2019, the Ninth Circuit ruled in Martin v. Boise that, where individuals did not have access to alternative, adequate shelter, enforcing laws barring public camping violated the Eighth Amendment, because there was nowhere else for homeless individuals to go. However, the Grants Pass case overrules Martin, allowing enforcement of laws prohibiting public camping, even where no adequate shelter is provided. Justice Gorsuch, writing for the Court, contended that the Eighth Amendment protections “[do] not authorize federal judges” to take the rights to regulate homelessness policy away from the states. Thus, the decision as to whether to punish those with nowhere else to go is left to the states, and the federal government is unable to prevent such actions.
What is the Eighth Amendment?
The Eighth Amendment provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The amendment prevents the federal government from “imposing unduly harsh penalties on criminal defendants.” However, what constitutes “cruel” and “unusual” has been the subject of much debate. One such relevant case is the 1962 Supreme Court ruling in Robinson v. California, which involved a California statute that made it a misdemeanor to “be addicted to the use of narcotics.” The Court held that the law violated the Eighth Amendment’s Cruel and Unusual Punishment Clause because it criminalizes a person’s status. The theory behind the so-called status crimes doctrine was that “punishing a status in the absence of a criminal act” was categorically cruel and unusual. While it appears that the status crimes doctrine should apply to the homeless population, Justice Thomas in his concurring opinion in Grants Pass argued that the city ordinance does not punish the status of homelessness itself, but rather the acts and conduct that constitute camping in public. This line of argument allowed a work-around for the Eighth Amendment based on the Clause’s “fixed meaning” of the text, as opposed to “public opinion” on morality.
Housing as a Human Right
The Grants Pass decision is a human rights issue, because of its effect on housing as a human right. The legal basis for housing as a human right is found in Article 25 of the Universal Declaration of Human Rights (UDHR), which declares that “[e]veryone has the right to a standard of living adequate for the health and well-being of himself and of his family,” including housing. Further, the right to housing is codified in Article 11 of the International Covenant on Economic, Social, and Cultural Rights (ICESCR). Though the United States has signed both of these documents, housing is generally viewed as a commodity in the U.S., rather than a right, and there are no federal laws that declare housing a human right. In the United States, a right to housing does not require the government to provide every individual free housing. However, it does require that the federal and state governments recognize the right, and vests in them the responsibility to ensure the right to adequate housing. Grants Pass not only overlooks the U.S.’s duty to uphold the purposes of the UDHR and the ICESCR, but it also allows the government to avoid its responsibility to recognize housing as a human right, because it allows states to punish, instead of rehabilitate, the issue of homelessness.
Further, Grants Pass inhibits access to fundamental rights. Housing is the basis to ensure the fundamental rights of life, liberty, and security, guaranteed by the Constitution’s Bill of Rights. Additionally, stable housing can protect the right to be free of cruel and unusual punishment, including “arbitrary and disproportionate punishments.” On the other hand, housing instability limits access to proper medical care and education, inhibits individuals’ privacy and security, and subjects individuals to harassment by civilians and the government. Accordingly, Grants Pass allows the government to punish, instead of remedy, homelessness, further inhibiting homeless individuals’ fundamental rights to live securely and free of arbitrary punishment.
The Implications
The Supreme Court asserts that the Grants Pass decision does not actually inflict cruel and unusual punishment to the point of implicating the Eighth Amendment. It merely raises the possibility of a fine and states that “the possibility of a civil fine turn[ing] into a criminal trespass charge is a remote one.” However, the fact remains that the Eighth Amendment offers protection for the homeless population of the country from being criminalized for sleeping and living where there is space available for them, especially when there is nowhere else for them to go. With the decision in Grants Pass, this protection no longer exists.
The Grants Pass decision, whether positive or negative, has brought attention to the homeless crisis and the rate at which it is growing. The effects of this decision are already being seen; some states have begun to pass camping bans that enact “homeless sweeps.” Additionally, homeless advocates argue that it grants the nation the opportunity to take action on finding real and practical solutions to “balance the needs of homeless people” with the duties of cities to ensure safety in public spaces.
Those in favor of the decision to allow enforcement of public camping bans argue that preventing enforcement actually leaves cities unable to “manage their communities.” Supporters of the Grants Pass ruling believe that it allows cities to rebuild their public parks, enhances the safety of public parks, and provides cities with control over how to “deal with the homeless population.”
Those in opposition to the Grants Pass ruling argue that the decision “give[s] free rein” to law enforcement, as opposed to city leaders, to address homelessness. Homeless advocates argue that this shift will allow “pointless” arrests and imprisonment over working towards actual solutions. Indeed, homeless people are “disproportionately more involved” in the criminal justice system. Often, this is because living outside makes them more likely to be arrested for low-level offenses, such as “public nuisance crimes,” including sleeping in public or loitering. Thus, it can be argued that Grants Pass, by allowing the continued arrest of homeless individuals without evidence of criminal conduct, allows local governments and law enforcement to avoid enacting solutions, such as the provision of stable housing or initiatives to address mental health and employment needs.
The true implications of this decision on one of the nation’s most vulnerable populations are yet to be fully determined. Several states already had camping bans, but did not use them to criminalize homelessness, even before the Grants Pass decision. These precedents may provide hope that, instead of punishing the homeless population that live in encampments where no shelter is adequately available to them, states will enforce camping bans only to regulate safety where it is in question. Ultimately, Grants Pass v. Johnson has brought attention to the current state of homelessness, and one can only hope that state and federal officials take the opportunity to adequately address the issue in a way that helps the over 600,000 homeless individuals living in the U.S. today.
Glossary
Arbitrary: Arbitrary enforcement refers to punishments that are based on an inconsistent application of the law, often at the subjective discretion of authority.
Disproportionate: Actions or decisions that negatively impact a specific population more than others.
Morality: Refers to principles based on objective ideas of right and wrong.
Narcotics: Substances used to relieve pain and dull senses, including opioids, opiate-derivatives, and synthetic opiates.
Nuisance: Voluntary conduct by individuals that unreasonably interferes with another’s rights or enjoyment of private or public property.
Ordinance: Local or state laws that prohibit or restrict some form of conduct.
Rehabilitate: Strategies to intervene, evaluate, and prevent issues that negatively impact an individual’s day-to-day lives, and work to improve conditions. In the context of homelessness, this can include addressing mental health needs or working towards housing stability.
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