When Survival Becomes a Crime: The Unconstitutionality of Grants Pass v. Johnson (2024)

Every year, the U.S. Department of Housing and Urban Development (HUD) takes a Point-in-Time (PIT) count. This statistic tracks data on homelessness in the United States at a given “point in time,” or day. As such, at a point in time in January 2023, HUD reported that 653,104 people in the United States were experiencing homelessness. Troublingly, this figure is the highest PIT Count HUD has reported since 2007, the year HUD began taking PIT counts [1]. Yet, according to the U.S. Government Accountability Office, HUD counts on homelessness likely underestimate the true American homeless population, suggesting that the true number of homeless individuals surpasses HUD’s already sobering statistics [2]. Though concerning that this data is inaccurate, it is also somewhat unsurprising, as it is inherently difficult to keep track of a population that does not have a fixed living address. All these data demonstrate a larger theme: homelessness in the United States is on the rise, and the already high statistics surrounding homelessness rates do not even fully capture the magnitude of this issue.

These statistics reflect the fragile social fabric homeless populations exist in, fundamentally shaped by legislation that constricts what they legally can and cannot do as they search for places to live, which are often limited. Most notably, in Grants Pass v. Johnson (2024), Gloria Johnson and John Logan, two homeless individuals living in Grants Pass, Oregon, filed suit against the city, due to its “anti-sleeping,” “anti-camping,” and “park exclusion” laws. The district court sided with Johnson, as did a Ninth Circuit panel, through rulings founded on the Eighth Amendment’s prohibition against “cruel and unusual” punishment. Additionally, precedent in cases such as Martin v. City of Boise (9th Cir. 2018) asserts that it is unconstitutional to criminalize homeless populations for living on public property if they have no other sheltering options. However, regardless of these lower court rulings, the Supreme Court ruled in a 6-3 decision for Grants Pass, overturning the district court ruling, with the argument that the city’s laws did not inherently criminalize the homeless and therefore were not cruel and unusual. Considering that the city’s homeless population exceeds its sheltering capacity, the Court’s argument is unsound [3]. This article will argue two ways in which the Court’s ruling in Grants Pass v. Johnson (2024) criminalizes homelessness and is unconstitutional under the Eighth Amendment: (1) it contradicts the definition of “cruel and unusual” punishment established by precedent, and (2) it penalizes homeless people for nonnegotiable actions.

The Court’s ruling for Grants Pass contradicts Eighth Amendment precedent, which suggests that it is unconstitutional to criminalize the status of a person. For instance, in Robinson v. California (1962), the defendant brought the case to the Supreme Court after being convicted by California state law for his narcotic addiction. In a 6-2 decision, the Court argued that Robinson’s conviction constituted cruel and unusual punishment because it criminalized his “status” of being “mentally ill” [4]. This case offers insight into the role of personal agency in making Eighth Amendment assessments; because Robinson lacked the agency to change his status of having a narcotic addiction at the time he was convicted by the state, it would be considered cruel and unusual to punish him. Even in the 1960s, when the general American population was less knowledgeable of mental health disorders, the Court was able to realize that California state law was unconstitutional, as the law was not criminalizing an unlawful action Robinson took. Rather, it was criminalizing his mental health condition. Yet, though this precedent is too fundamental for the Court to overturn, in the case of Grants Pass v. Johnson (2024), the Court reverses this precedent to rule that it is legal to criminalize homeless people for sleeping on public property, even when they do not possess alternative living arrangements.

“Sleep is a biological necessity, not a crime,” writes Justice Sotomayor in her dissenting opinion, joined by Justices Kagan and Jackson [5]. The Court’s vote to legalize anti-sleeping laws on public property strips homeless individuals of their right to perform actions fundamental to personhood. In Grants Pass (2024), the majority opinion argues that it is outside of the jurisdiction of the Eighth Amendment to consider the substance of what it punishes; rather, the Amendment’s Cruel and Unusual Punishment Clause should serve to consider the method of punishment. However, this distinction is arbitrary because both what is being punished and how the punishment is taking place need to be considered when deciding what is cruel and unusual. The very language of the Eighth Amendment even suggests that the context of what is being punished needs to be considered, as it prevents “excessive” punishments. The term “excessive” implies proportionality: a punishment is excessive if it is unduly severe, given the context of the act it penalizes. As such, one cannot judge whether the method of punishment is cruel and unusual without considering the substance of the punishment. For instance, without context, simply fining a person for committing a crime does not seem cruel and unusual because this punishment is, in the totality of all punishments authorized by law, not particularly severe. But if one considers that homeless people with no other sheltering alternatives are being fined for inhabiting public property, this punishment emerges as cruel and unusual because it is disproportionately severe and unwarranted, criminalizing people for performing a “biological necessity” [6].

The Supreme Court’s ruling in Grants Pass v. Johnson (2024) reverses critical precedent by criminalizing status. Given the overwhelming data showing that the American housing shortage is growing by the years, the timing of this decision is particularly disheartening. What comes next? In California, Governor Gavin Newsom responded to the Court’s decision by ordering evacuations of homeless encampments across the state. These evacuations are evacuations, and nothing more—they do not ensure that homeless populations can move to shelter, and California itself does not even have enough shelter to house the entirety of its homeless population [7]. Hence, Newsom’s order seems to be an overly simplistic solution to a very complex problem that has been exacerbated by the Court’s recent ruling. If it is now considered a crime to live on public property when you have no alternative housing arrangements, then there are only two solutions to this problem: (1) decriminalize homelessness, and (2), increase sheltering opportunities. Ideally, the government should do both.

Bibliography

[1] de Sousa, Tanya, Alyssa Andrichik, Ed Prestera, Katherine Rush, Colette Tano, and Micaiah Wheeler. The 2023 Annual Homelessness Assessment Report (AHAR) to Congress. Washington, DC: U.S. Department of Housing and Urban Development, n.d.

[2] “Homelessness: Better HUD Oversight of Data Collection Could Improve Estimates of Homeless Population.” U.S. Government Accountability Office, July 14, 2020. https://www.gao.gov/products/gao-20-433.

[3] "City of Grants Pass v. Johnson." Oyez. Accessed October 14, 2024. https://www.oyez.org/cases/2023/23-175.

[4] "Robinson v. California." Oyez. Accessed October 14, 2024. https://www.oyez.org/cases/1961/554.

[5, 6] City of Grants Pass v. Johnson, 603 U.S. ___ (2024).

[7] Hubler, Shawn. “Newsom Orders California Officials to Remove Homeless Encampments.” The New York Times, July 25, 2024. https://www.nytimes.com/2024/07/25/us/newsom-homeless-california.html.