Watch the full video: https://www.msnbc.com/ana-cabrera-reports/watch/supreme-court-upholds-law-criminalizing-homeless-encampments-on-public-property-213884997659

Note: In addition to the video, please see the following related article:

“Homeless People Can be Ticketed for Sleeping Outside”

https://www.cnn.com/2024/06/28/politics/homeless-grants-pass-oregon-supreme-court/index.html

The U.S. Supreme Court recently ruled in favor of an Oregon city that ticketed homeless people for sleeping outside, rejecting arguments that such “anti-camping” ordinances violate the U.S. Constitution’s ban on “cruel and unusual” punishment.

Justice Neil Gorsuch wrote the opinion for the 6-3 conservative majority, with the three liberal justices dissenting.

Anti-Camping Ordinances

The case centered on “anti-camping” ordinances in Grants Pass, Oregon, that were challenged by several residents experiencing homelessness.

It had been watched closely by city and state officials who are uncertain how to respond to a surge in homelessness and encampments that have cropped up under bridges and in city parks across the nation. It is also being followed by people who live in those encampments and are alarmed by efforts to criminalize the population rather than build shelters and affordable housing.

“The Constitution’s Eighth Amendment serves many important functions, but it does not authorize federal judges to wrest those rights and responsibilities from the American people and in their place dictate this Nation’s homelessness policy,” Gorsuch wrote in his majority opinion.

The Complexity and Causation of Homelessness

Gorsuch wrote that “homelessness is complex” and that “its causes are many.”

“People will disagree over which policy responses are best; they may experiment with one set of approaches only to find later another set works better; they may find certain responses more appropriate for some communities than others,” he wrote. “But in our democracy, that is their right. Nor can a handful of federal judges begin to ‘match’ the collective wisdom the American people possess in deciding ‘how best to handle’ a pressing social question like homelessness.”

Justice Sotomayor’s Dissent

Justice Sonia Sotomayor said in a dissent joined by the court’s two other liberals that the ruling punishes people for being homeless.

“Sleep is a biological necessity, not a crime,” Sotomayor wrote. “For some people, sleeping outside is their only option.” The city, she said, “punishes them for being homeless. That is unconscionable and unconstitutional.”

In a move that underscored her discontent with the court’s ruling, Sotomayor took the rare step of reading her dissent from the bench.

The ordinances barred people from sleeping in public with “bedding,” which can include sleeping bags or bundled-up clothing. Each violation of the ordinances carried a $295 fine, which increased to more than $500 if not paid. After two tickets, police could order a person to avoid a park for 30 days.

Anyone who violated that order could have been sentenced to 30 days in jail.

The Federal Appeals Court Ruling

A federal appeals court ruled against the city, holding that Grants Pass could not “enforce its anticamping ordinances against homeless persons for the mere act of sleeping outside with rudimentary protection from the elements, or for sleeping in their car at night, when there was no other place in the city for them to go.”

Grants Pass argued that the Eighth Amendment’s prohibition on “cruel and unusual” punishment was aimed at torture or hard labor sentences, not tickets. An attorney for the city told the justices that the appeals court ruling “tied cities’ hands by constitutionalizing the policy debate over how to address growing encampments.”

“These are low-level fines and very short jail terms for repeat offenders that are in effect in many other jurisdictions,” the attorney, Theane Evangelis, said during the April 22 oral arguments. “This is not unusual in any way. It is certainly not cruel.”

During oral arguments, several of the justices appeared concerned about the prospect of criminalizing homelessness but they also worried about limiting a city’s ability to regulate public health or fire hazards in homeless encampments across the country.

Sleeping as a “Biological Necessity”

“Sleeping is a biological necessity. It’s sort of like breathing,” Justice Elena Kagan, a member of the court’s liberal wing, said at one point. “You can say breathing is conduct, too, but presumably you would not think that it’s OK to criminalize breathing in public. And for a homeless person who has no place to go, sleeping in public is kind of like breathing in public.”

On any given night, more than 650,000 people in the United States are experiencing homelessness, according to the US Department of Housing and Urban Development. That number increased 12 percent from 2022 to 2023.

The Reaction of Housing Rights Groups

In reaction to the Supreme Court’s ruling, housing rights groups came out in full force to condemn the decision.

“Arresting or fining people for trying to survive is expensive, counterproductive, and cruel,” said Jesse Rabinowitz, communications director at the National Homelessness Law Center, echoing the dissenting justices who decried the majority’s ruling as violating the 8th Amendment.

The National Alliance to End Homelessness said it is worried the ruling may shift the burden of the homelessness crisis to law enforcement, a tactic they say “has consistently failed to reduce homelessness in the past, and it will assuredly fail to reduce homelessness in the future.”

Gavin Newsom – a Democratic governor who has focused on reducing homelessness in his state of California – did not denounce the decision. Instead, he said that the ruling “removes the legal ambiguities that have tied the hands of local officials for years,” adding that the ambiguity has long limited local officials’ options for clearing encampments.

And Jay Cheng, executive director of Neighbors for a Better San Francisco, also sees this ruling as an avenue to progress on the housing crisis facing his city by clearing “large dangerous tent encampments and offering homeless individuals shelter and services.”

Discussion Questions

1. As the article indicates, the Eighth Amendment to the U.S. Constitution prohibits “cruel and unusual” punishment. In your reasoned opinion, what does that specifically mean?

Since this is, in many respects, an opinion question, student responses may vary. As is the case with so many constitutional rights (free speech, freedom of assembly, freedom of religion, the right to bear arms, etc.), the actual language of the constitution does not particularly define or set parameters for the right. The same is true with the prohibition against “cruel and unusual” punishment. The effect of this is that when the issue comes into question, the judiciary (for example, the U.S. Supreme Court) must add “meat to the bones” in terms of more particularly defining and describing the right. One interesting example of this is the U.S. Supreme Court’s refusal to deem the death penalty itself cruel and unusual, although the Court has reserved the right to review the constitutionality of certain methods of administering the death penalty (e.g., hanging, the electric chair, lethal injection, etc.).

2. As indicated in the article, Justice Neil Gorsuch, who wrote the majority opinion for the U.S. Supreme Court, stated that “homelessness is complex” and that “its causes are many.” In your reasoned opinion, what is the primary cause of homelessness, and is this cause (and subsequent effect) within the control of the homeless individual?

Answering this question is less aided by legal expertise than it is by the input of experts in economics, sociology, and psychology. In your author’s opinion, the primary cause of homelessness is social alienation resulting from a lack of trustworthy relationships. There are certainly other causes as well, including illness and disability, abuse, the lack of subsistence wages, unemployment, the lack of affordable housing, and personal hardship. For more information regarding the causes of homelessness, please refer to the following internet address maintained by the Atlanta Mission:

https://atlantamission.org/7-major-causes-homelessness/

3. Do you support or oppose the majority decision in this case? Why or why not?

This is an opinion question, so student responses may vary. In your author’s opinion, but for (in no definitive order) circumstance, luck, grace, and self-determination go all of us.