Supreme Court Case on Homelessness: Grants Pass v. Johnson


Background: City of Grants Pass, Oregon v. Gloria Johnson

At the crux of this case is the question of whether it is Constitutional for municipalities in the United States to criminalize acts such as sleeping in public spaces. This stems from the City of Grants Pass, Oregon, introducing new policies that rendered “camping,” including sleeping outdoors, criminal acts that could incur fines, and would have more severe consequences on repeat offenses.

According to one city councilor of Grants Pass, researchers noted, the goal of these ordinances was “to make it uncomfortable enough for [homeless persons] in our city so they will want to move on down the road.” (See page 17 of the PDF opinion hosted in the link.)

Opponents of the ordinances, who prevailed in lower courts, argued that this penalization constitutes a violation of the Eighth Amendment, which prohibits “cruel and unusual punishment,” arguing that people experiencing unsheltered homelessness constitute a status or class that does not have anywhere else to sleep, and these ordinances criminalize their class, not merely their actions. The Supreme Court disagreed with that reasoning, siding with the City of Grants Pass.

Is Homelessness a Condition or an Action?

The legal argument partially centers around whether homelessness is a state or condition (e.g., substance addiction), or an act (e.g., using illicit substances). Precedent holds that criminalizing a state or condition would violate the Eighth Amendment, while criminalizing an act would not.

Writing for The New England Journal of Medicine, Ryan Keen and Mayilyn Winkleby argue that homelessness is best understood to be a state and not an act. Their reasoning is that that the causes of homelessness are extremely complex and include many factors outside the control of those who experience homelessness, including systemic factors, disability, and mental illness.

“With most people who experience homelessness reporting multiple risk factors,” write Keen and Winkleby, “these data suggest that homelessness is a status that is rarely attributable to a single characteristic or experience.”

The Supreme Court ultimately disagreed with this reasoning and ruled in favor of the City of Grant’s Pass, determining that it is Constitutional for municipalities across the country to pass similar laws.

SCOTUS’s Decision on Homelessness as a Condition

Justice Gorsuch, on behalf of the majority, writes:

The Court cannot say that the punishments Grants Pass imposes here qualify as cruel and unusual … because they are not designed to “superad[d]” “terror, pain, or disgrace,” … [and] because similarly limited fines and jail terms have been and remain among “the usual mode[s]” for punishing criminal offenses throughout the country.

Grants Pass’s public-camping ordinances do not criminalize status. The public-camping laws prohibit actions undertaken by any person, regardless of status. It makes no difference whether the charged defendant is currently a person experiencing homelessness, a backpacker on vacation, or a student who abandons his dorm room to camp out in protest on the lawn of a municipal building.

While there is a lot going on behind the reasoning of these arguments, the essence of the Court’s opinion is that the ordinances do not target status but only actions, and that the penalties are monetary and typical, and therefore do not run up against the Eighth Amendment.

Regarding the concerns highlighted by Keen and Winkleby, the decision did not comment on the reported intent of the ordinances to target people experiencing homelessness, as the lower courts cited a Grants Pass City Council member expressing skepticism as to the judicial precedence of interpreting the Eighth Amendment as applicable to punishments targeting people’s conditions (e.g., page 25 of the decision).

Is Homelessness Now Criminalized?

According to Keen and Winkleby, criminalizing outdoor sleeping will not put an end to unsheltered homelessness—nor is it intended to. They write: “Evidence suggests that interventions prioritizing placement in affordable housing and integration of legal, financial, and social services can reduce homelessness and improve health care utilization among homeless populations.”

Rather, they suggest policies will greatly exacerbate the situation of those experiencing homelessness and ultimately have major negative repercussions, for the following reasons:

  • People experiencing homelessness will almost certainly be unable to pay the fines prescribed by these laws. Unpaid fines, according to the laws adopted by Grant’s Pass, compound the consequences for those cited.
  • Making public unsheltered homelessness a criminal act would turn many otherwise eligible clients ineligible for needed services, which would certainly lead to poorer outcomes.
  • Overall population health will decrease: As people become ineligible for needed programs to address their social determinants of health, we can expect to see an increase in costly interventions as lack of ameliorating care will lead to an increase in health crises, leading to an increase in high-cost emergency healthcare services, which translates to increased Medicaid expenditures.

Crucially, these sorts of local ordinances serve the express purpose of not solving homelessness—only pressuring homeless populations to move along (again, see page 17 of the Ninth Circuit decision). When people experiencing homelessness are forcibly relocated, it will add new stress on the programs and services available in whatever community they ultimately land.

Of course, nothing is certain yet. Actual outcomes remain to be seen, but this decision promises to leave its mark on homelessness service providers across the country.

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