Criminalizing Homelessness: The Dangerous Precedent Set by the Supreme Court in City of Grants Pass, Oregon v. Johnson

The Supreme Court’s decision in City of Grants Pass, Oregon v. Johnson marks a troubling shift in legislation by encouraging the over-policing of homeless communities and diverting resources away from solutions that address the root causes of homelessness [1]. Instead of advocating for policies that could alleviate the nation’s homelessness crisis, this ruling criminalizes individuals who have no choice but to sleep outside due to a lack of shelter. By allowing municipalities like Grants Pass, Oregon, to impose heavy fines and even jail sentences on those who sleep in public spaces, the Court has failed to recognize the inherent cruelty in punishing individuals for circumstances beyond their control. This decision sets a dangerous precedent, reinforcing punitive measures over compassion, all while bypassing the urgent need for housing and social support. Thus, the consequences of this ruling are alarming, as it threatens to escalate the criminalization of homelessness and normalize a cruel form of punishment for a vulnerable population. In doing so, the Court has ignored the broader systemic issues that contribute to homelessness, further entrenching societal inequalities. In this article, I will argue how the Supreme Court’s ruling not only violates constitutional protections, most notably the Eighth Amendment, but also perpetuates harmful ordinances that criminalize homelessness, all while failing to address the underlying causes of homelessness.

The Supreme Court’s decision in Grants Pass v. Johnson violates the "cruel and unusual punishment" clause of the Eighth Amendment by criminalizing individuals for engaging in an essential human function—sleep [2]. Without any viable alternative for shelter, homeless individuals have no option but to sleep outdoors. Fining or imprisoning them for doing so is, by any reasonable standard, an excessive punishment for their status. The heavy fines imposed by the city of Grants Pass, ranging from $295 to $1,250, as well as the possibility of jail time, disproportionately target individuals already struggling with the extreme difficulties of homelessness [1]. By approving these punitive measures, the Supreme Court has endorsed the view that homelessness is something to be policed, not to be addressed with policy-driven solutions that support homeless individuals.

Justice Sotomayor’s dissenting opinion in Grants v. Pass highlights the profound inhumanity of the ruling. She astutely asserts, “sleep is a biological necessity, not a crime,” underscoring that punishing someone for performing a life-sustaining act is fundamentally at odds with the rights enshrined in the Eighth Amendment [1]. The punishment does not fit the "crime," especially when that "crime" is merely existing in public spaces without shelter. Scholars from Cornell Law School define crime as “behavior that is punishable by as a public offense” [3]. However, the behavior in question – sleeping in public spaces – is not a crime at all and, thus, merits no punishment. Since sleep does not warrant any punishment, fines and jail time should not be imposed on homeless individuals who sleep on or around public buildings. The Court's decision, therefore, sets a dangerous legal standard for what qualifies as cruel and unusual punishment, resulting in severe ramifications for homeless individuals across the country.

This ruling already has a profound ripple effect, influencing other cities to adopt similar punitive ordinances against homeless individuals. A striking example is the City of Boston’s 2023 ordinance banning tents and tarps on public property, a policy implemented even though emergency shelters are at total capacity [4]. This ordinance not only forces homeless individuals to seek even more dangerous sleeping arrangements but also exacerbates the very problems it purports to solve. When these ordinances displace homeless individuals, they are pushed further to the margins of society–including unsafe areas. These laws, rather than solving the issue of homelessness, contribute to a cycle of poverty, marginalization, and criminalization. By making it illegal to seek shelter in public, municipalities are forcing homeless individuals into an impossible position: either risk violating ordinances or suffer the dangers of sleeping without any protective shelter. This approach does nothing to address the lack of affordable housing, job instability, mental health care, or other factors that contribute to homelessness. Instead, it punishes individuals for conditions they cannot control.

Moreover, this ordinance criminalizes homeless individuals through anti-camping laws, which prohibit people from sleeping or camping on public property. These anti-camping laws divert valuable public resources from addressing the root causes of homelessness. Essential services such as affordable housing initiatives, employment support, and mental health care remain underfunded. The U.S. Department of Housing and Urban Development found that “the number of people experiencing homelessness has always outpaced the number of existing shelter beds” [5]. Furthermore, anti-camping laws push homeless individuals into less visible areas, often further away from the reach of service organizations that could help them find shelter or provide critical resources. According to the National Alliance to End Homelessness, "these ordinances make it significantly more difficult for outreach programs to assist homeless individuals” [6]. By forcing homeless people into the shadows, municipalities reduce the visibility of the crisis to protect the interests of sheltered individuals over the safety of those experiencing homelessness.

Supporters of these anti-homeless ordinances argue that the Supreme Court is not criminalizing homelessness per se but rather the actions taken by homeless individuals, such as sleeping in public spaces. However, this distinction between "status" and "action" is unjustified. The act of sleeping in public is directly linked to a person’s homeless status. Without sufficient shelter space or affordable housing, the actions homeless individuals take to survive—such as sleeping outdoors—become inevitable. They have no alternative but to sleep in the only spaces available, which, in many cases, are public.

The fact that a homeless person’s actions are tied to their status means that criminalizing those actions is, in effect, criminalizing their status. Courts have previously held that laws punishing individuals for unavoidable consequences of their status violate the Constitution. Notably, the Supreme Court applied the Equal Protection clause to outlaw discrimination based on race—a status related to one’s identity [7]. By ruling in favor of Grants Pass, the Supreme Court is eroding this precedent and opening the door to further discrimination against homeless individuals whose homeless status may only be temporary. Without adequate shelters or safe places to sleep, local, state, and federal government agencies are setting homeless people up to fail. However, the Supreme Court would preserve the precedent set by the Equal Protection clause if they ruled in favor of Grants Pass.

Previous precedents that regulate public property use, such as anti-loitering laws, are typically enacted to preserve public order, safety, and the intended use of those spaces. However, these regulations usually do not criminalize actions essential to survival, unlike the decision in Grants v. Pass. The actions of homeless individuals—such as sleeping outside or setting up tents in public spaces—are directly tied to their lack of housing. If a person has no other choice but to sleep in a public space due to a lack of shelter beds or affordable housing, punishing them for doing so is inherently unjust. More specifically, law enforcement should enforce anti-loitering laws to punish sheltered individuals who have no reasonable or lawful explanation for camping on public property.

The precedent for this argument comes from Martin v. City of Boise (2019), in which the U.S. Court of Appeals for the Ninth Circuit ruled that it is unconstitutional to criminalize homeless individuals for sleeping in public when no alternative shelter is available [8]. The decision ultimately established that municipalities could not enforce anti-camping laws if the number of beds in a shelter is less than that of homeless individuals, highlighting the inherent injustice of penalizing people for actions born out of necessity. Carrying forward restrictions from other public property precedents ignores the distinct vulnerability of homeless individuals. Additionally, it disregards the constitutional prohibition against "cruel and unusual punishment" in the context of unavoidable behavior. While some restrictions on public property are justified, such as loitering or trespassing for purposes outside of sleeping, extending those restrictions to prohibit sleeping disproportionately targets people who lack the means to comply.

To conclude, the Supreme Court’s decision in City of Grants Pass, Oregon v. Johnson prioritizes punitive measures over compassion and care. By allowing municipalities to criminalize the basic actions of individuals experiencing homelessness, the Court has set a precedent that undermines constitutional protections and shifts resources away from addressing the true causes of homelessness. Instead of focusing on punitive approaches that push homeless individuals into the shadows, we must focus on solutions that provide shelter, stability, and dignity to every member of society. Local and state governments should implement initiatives to address the homelessness crisis meaningfully by increasing housing affordability, rental assistance, and rapid re-housing, connecting individuals to housing services immediately after their instability.

Bibliography

[1] The Supreme Court of the United States. 2024. “23-175 City of Grants Pass v. Johnson (06/28/2024).” Supreme Court. https://www.supremecourt.gov/opinions/23pdf/23-175_19m2.pdf

[2] “U.S. Constitution, Eighth Amendment.” 1791.

[3] “crime | Wex | US Law | LII / Legal Information Institute.” 2022. Law.Cornell.Edu. https://www.law.cornell.edu/wex/crime

[4] Micek, John L. 2024. “Mass. shelter system could run out of money within days, top Dem warns.” MassLive. https://www.masslive.com/politics/2024/04/mass-shelter-system-could-run-out-of-money-within-days-top-dem-warns.html

[5] U.S. Department of Housing and Urban Development. “2023 Annual Homeless Report to Congress.”

[6] Visotzky, Alex. 2023. “What Can (and Can't) Local Government Do to Address Homelessness?” National Alliance to End Homelessness. https://endhomelessness.org/blog/what-can-and-cant-local-government-do-to-address-homelessness/

[7] “Interpretation: The Equal Protection Clause | Constitution Center.” n.d. The National Constitution Center. https://constitutioncenter.org/the-constitution/amendments/amendment-xiv/clauses/702

[8] Berzon, Judge. 2019. “UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.” UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. https://cdn.ca9.uscourts.gov/datastore/opinions/2019/04/01/15-35845.pdf