The Criminalization of Homelessness

As homelessness increases at unprecedented rates, homeless shelters in the United States have limited capacity to meet the rising demand for unhoused individuals [1]. Shelters, with their support geared toward reintegration and rehabilitation, provide services ranging from free meals to employment assistance, healthcare, and a place to spend the night. Homeless shelters, however, sometimes lack sufficient beds to meet the supply of unhoused individuals. Faced with no alternative housing, unhoused individuals are forced to reside in public areas, which can include sleeping on the streets, benches, parks, etc. Residing on the streets is more of a final recourse than an autonomous decision, which is now grounds for arrests and excessive fines in most states in the U.S. [2].

Whether the U.S. Constitution’s 8th Amendment, prohibiting “cruel and unusual punishment,” outlaws the criminalization of homelessness was debated in appellate courts and appealed to the U.S. Supreme Court earlier this year [3]. In a 6-3 decision, the Supreme Court ruled in City of Grants Pass, Oregon v. Johnson that the 8th Amendment does not prohibit municipal codes criminalizing sleeping in public, setting a precedent that homelessness is grounds for criminal penalties [4]. This ruling has contributed to significant debates concerning the purpose, intent, and scope of the 8th Amendment’s protection and implementation [5]. I argue that the protections of the 8th Amendment should be expanded to protect unhoused individuals from “cruel and unusual” legislation that disproportionately criminalizes them.

This case was prompted by a municipal code in Grants Pass, Oregon, prohibiting sleeping and encampments in public areas [6]. According to the Supreme Court, “Grants Pass, Oregon, is home to roughly 38,000 people, about 600 of whom are estimated to experience homelessness on a given day” [7]. Considering that Grants Pass has “no low-barrier overnight shelter available for homeless residents,” unhoused individuals lack dependable housing alternatives [8]. Therefore, its municipal government criminalizes homelessness without offering viable housing solutions [9]. Since homeless individuals often lack the resources to secure safe, suitable homes, this municipal code became the subject of a suit in the Ninth Circuit Court of Appeals [10].

Citing the 8th Amendment, the Ninth Circuit Court of Appeals ruled this code unconstitutional, declaring the imposition of criminal penalties for public sleeping as “cruel and unusual punishment” [11]. In deciding this ruling, the Ninth Court of Appeals abided by stare decisis, or the principle of following legal precedent when determining judicial decisions [12]. In 2018, in Martin v. City of Boise, the Ninth Court of Appeals ruled that governments could not criminalize sleeping in public if no housing alternatives were available [13]. This ruling stemmed from the 1962 Robinson v. California legal precedent, in which the Supreme Court ruled that governments could not criminalize individuals for drug addiction. Criminalizing a status was deemed “cruel and unusual punishment” [14]. Following this line of reasoning, the Ninth Court of Appeals ruled that criminalizing individuals for sleeping in public was synonymous with criminalizing them for their status. However, this ruling prompted significant backlash and led to various states filing amicus briefs, a document urging the Supreme Court to consider a case despite not being an explicit party [15], [16]. State governments with significant homeless populations feared that this ruling infringed on their ability to regulate homelessness, encampments, and public disorder.

When the case of the City of Grants Pass v. Johnson case reached the Supreme Court, the central question was whether criminalizing sleeping in public areas violated the protections of the 8th Amendment [17]. The 8th Amendment has taken on different interpretations over the course of America’s legal history, with former Chief Justice Earl Warren, presiding Chief Justice in Robinson v. California, calling for a more experiential understanding of the Cruel and Unusual Punishment Clause and Justice Clarence Thomas defending a more stringent interpretation [18], [19]. For example, Thomas upholds that “the clause prohibits only barbaric methods of punishment, not disproportionate punishment” [20].

In a 6-3 decision, “Justice Neil Gorsuch authored the majority opinion,” where he held that “the enforcement of generally applicable laws regulating camping on public property does not constitute ‘cruel and unusual punishment’ prohibited by the 8th Amendment” [21]. In Justice Thomas’ concurring opinion, he argued that “Robinson should be overruled because its interpretation of the 8th Amendment is not based on the plain text or history of the Cruel and Unusual Punishment Clause” [22]. In her dissenting opinion, Sotomayor underscored Warren’s experiential view of the Cruel and Unusual Punishment Clause, advocating that such “ordinances violate Robinson’s command that the government may not punish an individual for their status” [23].

In making this decision, the Supreme Court overturned the ruling in Martin v. City of Boise, citing that the 8th Amendment protections “[have] historically focused on [the] punishments following a criminal conviction, not on what behaviors a government may criminalize” [24]. Therefore, the 8th Amendment does not allow the Court to determine whether legislation is “cruel or unusual” [25]. Their scope is limited to the punishments and punitive process following a criminal conviction [26]. However, if the 8th Amendment’s protections apply exclusively to punishments following convictions, “cruel and unusual” legislation or state action could prevail. Without a judicial body to declare such laws unconstitutional, such laws could be implemented without being subject to discretion. However, even with the change in scope of the 8th Amendment, I still believe that the Cruel and Unusual Punishment Clause protects unhoused individuals from anti-sleeping mandates. Can someone be considered a “criminal” and subjected to the same reduction in civil liberties for merely sleeping in public? This is a form of “unusual punishment” because the punitive measures do not fit the intensity of the crime.

When the Supreme Court relinquished its authority to apply the 8th Amendment to legislation, it violated the amendment’s original intent in some respects. The Bill of Rights ensconced the various civil liberties the framers deemed necessary to protect the early United States. The 8th Amendment, like the other nine amendments in the Bill of Rights, was ratified to limit the federal government's power [27]. The prevailing concern at the time of the Constitution’s ratification was that the federal government would amass excessive power [28]. Bearing the original intent, the 8th Amendment’s protections should allow the Supreme Court to determine whether governments or legislation take on a “cruel and unusual” character. This would allow the Court to determine if governments are exceeding their role and violating civil liberties. It can be argued that the government criminalizing behaviors such as sleeping in public constitutes government overreach, which the Bill of Rights implicitly aimed to prevent.

Criminal impositions can also be considered a form of “cruel punishment” because they severely reduce an individual’s civil liberties. The 8th Amendment’s protections should regulate the “behaviors a government may criminalize” to prevent individuals from facing unjust and unfounded criminal penalties [29]. “[The] United States punishes people for being poor,” and the scope of the 8th Amendment should extend to prohibit legislation that disproportionately targets and criminalizes certain demographics [30]. In the long term, these convictions reinforce the cycle of poverty, as criminal charges make socio-economic mobility significantly more challenging. Homelessness is disproportionately prevalent in minority communities, and since the criminalization of homelessness was recently deemed acceptable by the Court, minorities will face excessive fines and imprisonment at higher rates, given their closer relationship to poverty and systemic inequalities [31]. This will contribute to the already prevalent socioeconomic gap between minorities and their white counterparts. For example, “the homeownership rate for black households in 2020 was 43.4%, [while] the homeownership rate for white households [was] 72.1%” [32]. Given the Court's recent ruling, this metric will not decrease soon. Rather than remedy the situation, the City of Grants Pass v. Johnson ruling will likely exacerbate it, contributing to higher rates of poverty in the United States.

It can be argued that criminalizing homelessness is a form of discrimination because it creates a criminal system that imposes penalties that disproportionately influence a certain sector of the population. However, the Grants Pass v. Johnson marks a change in how we view human rights in the United States because individuals can now face criminal penalties for their socioeconomic status. The United States was a key architect in the Universal Declaration of Human Rights (UDHR), and this ruling begs us to question how such a ruling contends with our commitment to upholding this framework. For example, Amendment 2 of the UDHR asserts that “everyone is entitled to all the rights outlined in this declaration, without distinction of any kind such as race, color, sex, language, etc.” [33]. We recognize a commitment to upholding laws equally regardless of the grounds of social status as a pivotal aspect of human rights. Yet, the Supreme Court has deemed legislation criminalizing social factors constitutional. What is at stake for the United States if governments can impose criminal penalties on individuals for factors often beyond their control?

Claiming that the 8th Amendment is upheld in cases where the punishments of a criminal conviction are “cruel and unusual” is insufficient because laws in themselves can be “cruel.” It is “cruel” to impose a law criminalizing an individual for sleeping. It is “cruel” to arrest unhoused individuals with no alternatives when criminal charges have lasting repercussions. It is “cruel” for America to criminalize homelessness, considering that America's history underscores why minorities face homelessness at higher rates. If the 8th Amendment only considers the repercussions of a criminal charge, which amendment protects individuals from the implementation of cruel and unjust laws? The 8th Amendment should protect humanity in our legal sphere and give a voice to those who have experienced “cruel and unusual” treatment at the hands of the law - whether legislation or punitive measures. In our legal system, which already disproportionately criminalizes the poor, there is now no system of regulation to protect minorities from “cruel and unusual” laws [34]. The societal implications of this ruling can take on the shape of “cruel and unusual punishment.”

In conclusion, the Cruel and Unusual Punishment Clause, now following a narrower interpretation, is exclusively upheld in cases where individuals may suffer “cruel and unusual” punitive measures and not in cases where legislation can be deemed “cruel and unusual” [35]. With regard to this new interpretation, I still believe that anti-sleeping mandates and the subsequent arrest and punishment of unhoused individuals for factors beyond their control are a form of “cruel punishment.” Compounding its severity is that criminal convictions have lasting repercussions on an individual’s social status and civil liberties. Municipal codes criminalizing homelessness only perpetuate the cycle of poverty, as criminal charges severely restrict their prospects for social and economic mobility. To criminalize an individual for social factors beyond their control is a blatant disregard for their human rights and protection from “cruel and unusual punishment.”

Bibliography

[1] Daniel Soucy, Makenna Janes, and Andrew Hall, “State of Homelessness: 2024 Edition,” National Alliance to End Homelessness, August 12th, 2024, https://endhomelessness.org/homelessness-in-america/homelessness-statistics/state-of-homelessness/.

[2] National Disability Rights Network, “Supreme Court Rules Homeless Can Be Arrested for Sleeping in Public Spaces,” June 28, 2024, https://www.ndrn.org/resource/supreme-court-rules-homeless-can-be-arrested-for-sleeping-in-pu blic-spaces/.

[3] Grants v. Johnson, 603 U.S.___(2024).

[4] Ibid.

[5] Ibid.

[6] 603 U.S. ___(2024).

[7] Ibid.

[8] Jeremiah Hayden, “Grants Pass Scrambles to Meet Humanitarian Standards at New Outdoor Homeless Sites,” August 30, 2024, https://www.streetroots.org/news/2024/08/30/grants-pass-scrambles-meet-humanitarian-standard s-new-outdoor-homeless-sites.

[9] Ibid.

[10] 603 U.S. ___(2024).

[11] National Homelessness Law Center, “Ninth Circuit Upholds & Clarifies Homeless Persons’ Right to Survive in Absence of Housing,” September 29, 2022, https://homelesslaw.org/ninth-circuit-upholds-clarifies-homeless-persons-right-to-survive-i n-absence-of-housing/.

[12] Ibid.

[13] Martin v. City of Boise, 920 F. 3d 584 (9th Cir. 2019).

[14] Robinson v. California, 370 U.S. 660 (1962).

[15] SCOTUSblog, “City of Grants Pass, Oregon v. Johnson,” April 22, 2024, https://www.scotusblog.com/case-files/cases/city-of-grants-pass-oregon-v-johnson/.

[16] Todd Thurman, “What Is an Amicus Brief?,” American Cornerstone Institute, July 31, 2023, https://americancornerstone.org/what-is-an-amicus-brief/.

[17] 603 U.S. ___(2024).

[18] Laura Temme, “Eighth Amendment - U.S. Constitution,” Findlaw, September 30, 2024, https://constitution.findlaw.com/amendment8.html.

[19] Amy Howe, “Justices Uphold Laws Targeting Homelessness with Criminal Penalties,” SCOTUSblog, June 28, 2024, https://www.scotusblog.com/2024/06/justices-uphold-laws-targeting-homelessness-with-crminal-penalties/.

[20] Bryan Stevenson and John Stinneford, “Interpretation: The Eighth Amendment,” National Constitution Center, September 14, 2015, https://constitutioncenter.org/the-constitution/amendments/amendment-viii/clauses/103.

[21] 603 U.S. ___(2024).

[22] Whitney K. Novak and Dave S. Sidhu, “The Eighth Amendment and Homelessness: Supreme Court Upholds Camping Ordinances in ‘City of Grants Pass v. Johnson,’” Congressional Research Service, July 19, 2024, https://crsreports.congress.gov/product/pdf/LSB/LSB11203.

[23] Ibid.

[24] 603 U.S. ___(2024).

[25] Ibid.

[26] Ibid.

[27] Bill of Rights Institute, “Bill of Rights (1791),” https://billofrightsinstitute.org/primary-sources/bill-of-rights.

[28] Ibid.

[29] 603 U.S. ___(2024).

[30] Nazish Dholakia, “How the United States Punishes People for Being Poor.” Vera Institute of Justice, September 21, 2023, https://www.vera.org/news/how-the-united-states-punishes-people-for-being-poor.

[31] National Alliance to End Homelessness. “Homelessness and Racial Disparities,” December 2023, https://endhomelessness.org/homelessness-in-america/what-causes-homelessness/inequality/.

[32] Hanna Chugg, “The Homeownership Gap between Black and White Families in the United States,” Ballard Brief, Spring 2023, https://ballardbrief.byu.edu/issue-briefs/the-homeownership-gap-between-black-and-white-families-in-the-united-states.

[33] United Nations, “Universal Declaration of Human Rights,” December 10, 1948, https://www.un.org/en/about-us/universal-declaration-of-human-rights.

[34] Dholakia, “How the United States Punishes.”

[35] 603 U.S. ___(2024).