SCOTUS To Hear Case On Constitutionality Of Functionally Banning Homeless People From Being In Public

// Is it cruel and unusual to punish homeless people for being homeless? Yes. That would be the entire article if America was an actual nation that cared about its citizens rather than an arms dealing corporation that happens to have people in it, but alas.

Vagrancy laws do exist to punish activities that homeless people often have to resort to in order to survive, like sleeping outside. And while those laws are undoubtedly cruel, the courts have not seen fit to elevate them to the level of cruel and unusual punishment.

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But the Supreme Court is about to consider a more complicated situation in City of Grants Pass v. Johnson: whether or not it’s fair game to throw homeless people in jail for not having a place to go to at night, if the town isn’t willing to provide any kind of shelter to keep them off the streets in the first place.

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From ABA Journal:

“This case is really about whether the Constitution protects unhoused people against punishment when there is no shelter or housing available to them,” says Antonia K. Fasanelli, the executive director of the National Homelessness Legal Center, a Washington, D.C.-based group that filed an amicus supporting the homeless plaintiffs who challenged the Oregon city’s policies. “Fundamentally, we know that criminalization only makes homelessness worse.”

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This reads as cruel to punish a person for merely being homeless, and it is unlikely that a $295 fine for sleeping outside or seizing their tent is going to help them get off the streets. It is very likely that it will help them find their way in to a jail cell though. It shouldn’t take the highest court to say that encouraging recidivism in the people with the fewest resources is anything but cruel, but the lawyers in favor of arresting the homeless emphasize a different part of the legal spin.

“Homelessness is complicated. The constitutional question presented in this case is not,” Seattle City Attorney Ann Davison says in an amicus brief for her city and a dozen others, along with city and county associations.

The 9th Circuit imposed a rule that says, “local governments must first provide an alternative place to go before telling someone they cannot stay where they are,” Davison wrote. “That rule is a rigid policy judgment.”

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The constitutional question of cruelty gets really simple if you just ignore the results. To see the 9th Circuit’s decision as a judicial overstep without engaging with the problem of criminalizing the status of being homeless is a red herring. Making it criminal for homeless people to sleep even if they had no other viable option for being somewhere else is a step removed for arresting someone for standing while homeless. Which is clearly the direction the state would go in if they got the leeway — imagine the Homeward Bound buses without the “Bound” part. I’d suggest they name it Bound 2, but nobody wants to hear Ye’s mouth.

If SCOTUS gives Oregon the green light to discriminate on the basis of status, which one do you think they will ramp up policing on next? My money is on being poor in public.

Supreme Court Will Consider Whether Criminalizing Homelessness Violates Eighth Amendment [ABA Journal]

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Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s.  He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at [email protected] and by tweet at @WritesForRent.

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8th Amendment, Courts, Homelessness, Oregon, Supreme Court